A 

A 

^^^==  o 

0 

0 

0 

9 

0 

6 

.IBI 

>  1 

4 

5 

^2  1 

^lii 


-A^LuiAW^goOKS 
01.D. 


The 

Rochester,  N.^ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


LAW    OF   WILLS 
EXECUTORS 


AND 


ADMINISTRATORS 


By 

JAMES  SCHOULER,  LL.  D. 

Author    ol     Treatises    on    "Domestic    Relations"     "Bailments"    and 
"Personal  Property,"  etc. 


FIFTH     EDITION 


IN  TWO  VOLUMES 
Vol.  1     Wills 
Vol.  2     Executors  eind  Administrators 


VOL.    1 


Albany^  N.  Y. 
MATTHEW  BENDER  &  COMPANY, 

INCORPORATED. 
1915. 


COPYRIOHT,  1883,  1886,  1889,  1892,  1900,  1901,  1910, 
By  JAMES  SCHOULER. 


Copyright.  1915. 
By  MATTHEW  BEXDER  &   COMPANY, 

INCORPOEATED. 

3v:> 


T 


NOTE  TO  FIFTH  EDITION. 


At  the  special  request  of  the  present  publishers  of  his  condensed 
volume  on  "  Wills  and  Administration,"  the  author  has  prepared 
for  publication  a  new  edition  of  the  original  work  in  two  volumes 
of  his  "  Law  of  Wills  "  and  "  Law  of  Executors  and  Adminis- 
trators," bringing  the  later  cases,  American  and  English,  down  to 
date,  and  re-editing  the  entire  work.  As  usual,  the  Tables  of  Cases 
are  prepared  by  others;  but,  except  for  the  assistance  of  a  com- 
petent member  of  the  bar  in  collecting  the  new  cases  for  volume 
two,  the  entire  revision  of  the  present  edition  is  the  personal  work 
of  the  author.  He  has  gone  over  everv  page  of  text  and  footnotes 
of  these  two  volumes,  altering,  omitting  or  expanding,  as  seemed 
desirable,  so  as  to  give  full  scope  to  the  newly  added  material. 

JAMES  SCHOULER. 

Boston,  September  1,  1915. 


ORIGINAL   PREFACE   TO    EXECUTORS   AND 
ADMINISTRATORS. 


The  present  work  completes  an  investigation  of  the  law  of 
Personal  Property,  whose  results  the  writer  commenced  publish- 
ing ten  years  ago ;  an  investigation  pursued  far  beyond  the  limits 
originally  proposed,  but  not  without  direct  encouragement  from 
his  professional  brethren. 

Four  volumes  properly  comprehend  the  main  subject,  as  follows : 

1.  The  Nature,   General   Incidents,    and   Leading   Classes   of 

Personal  Property.  Schoulek  on  Personal  Pkopeety, 
Vol.  1. 

2.  Title  to  Personal  Property  by  Original  Acquisition,  Gift 

and  Sale.  Schoulek  on  Personal  Peopekty,  Vol.  II. ; 
or,  as  it  might  well  be  styled,  Schoulek  on  Gifts  and 
Sales. 

3.  Title  to   Personal   Property  by  Bailment.     Schoulek   on 

Bailments,  including  Cakkiers,  Innkeepers  and 
Pledge. 

4.  Title  to  Personal  Property  by  Death.     Schoulek  on  Execu- 

tors AND  Administrators. 

Elementary  writers  discourse  further  of  Title  to  Personal  Prop- 
erty by  Judgment  and  Insolvency ;  but  the  law  pertaining  to  these 
subjects  is  greatly  controlled  at  this  day  by  statutes  of  local  appli- 
cation, and,  besides,  may  be  found  amply  discussed  in  text-books 
already  familiar  to  the  practitioner. 

A  practical  experience  in  the  special  branch  of  law  which  per- 
tains to  executors  and  administrators  has  been  found  serviceable 
to  the  writer  in  preparing  the  present  volume.  The  latest  pub- 
lished reports,  English  and  American,  to  the  close  of  the  year 

vii 


Vlll       ORIGINAL   PREFACE   TO   EXECUTORS   AND   ADMINISTRATORS. 

1882.  have  been  personally  consulted  by  him,  and  cited  so  far  as 
seemed  desirable.  The  American  decisions,  reported  in  the  United 
States  Digest,  have  been  carefully  studied.  Whatever  other  assist- 
ance has  been  received,  from  text-books,  and  especially  from  the 
elaborate  English  work  of  Williams,  on  this  subject,  is  duly 
acknowledged  in  the  foot-notes.^  Without  instituting  comparisons 
with  other  text-writers  on  this  important  branch  of  the  law,  the 
author  may  fairly  claim,  as  he  submits,  that  no  work  of  a  single 
volume  is  already  before  the  professional  public,  presenting  his- 
torically and  logically  the  whole  English  and  American  law  of 
executors  and  administrators,  with  a  due  regard  for  the  modern 
practical  needs  of  such  fiduciaries  and  their  legal  advisers,  separat- 
ing the  main  subject  from  those  more  abstruse  topics  which  pertain 
to  Wills  and  Testamentary  Trusts,  and  giving  to  the  excellent 
points  of  our  American  probate  practice  of  this  day  the  prominence 
justly  deserved.  He  trusts,  therefore,  that  the  present  work  will  be 
found  to  supply  an  actual  want,  in  a  genuine  sense. 

JAMES  SCHOULEK. 
Boston,  March  31,  1883. 


1  Williams   on   Executors   and   Administrators,   7th   English    Edition    (with 
Perkins's  American  Notes) ,  is  cited  in  the  present  work. 

Schouler  on  Wills    (a  companion  volume),  was  subsequently  published. 


ORIGINAL  PREFACE  TO  WILLS. 


This  book  has  been  prepared  as  a  companion  volume  to  the 
author's  work  on  "  Executors  and  Administrators,"  which  was 
issued  about  three  years  ago,  and  found  a  rapid  sale.  It  treats 
of  Wills,  their  nature,  essentials,  and  mode  of  interpretation; 
while  the  former  book  discussed  the  Administration  of  estates, 
testate  and  intestate,  and  the  rights  and  duties  of  Executors  and 
Administrators;  and  the  two  volumes  together  fairly  comprehend 
the  English  and  American  law  relating  to  Estates  of  Decedents, 
traced  historically  and  logically  down  to  the  present  day. 

The  writer's  plan  of  treatment  follows  that  pursued  in  his 
former  volume,  and  described  in  its  preface.  Abstruse  and 
superfluous  details  have  been  subordinated  to  the  idea  of  clearly 
presenting  to  student  and  practising  lawyer  the  main  principles 
of  our  law;  and,  writing  from  an  independent  standpoint,  the 
author  has  not  felt  hampered  by  the  necessity  of  parcelling  out 
our  excellent  American  jurisprudence  to  hang  in  footnotes  upon 
the  random  hooks  of  any  English  treatise.  English  and  American 
systems  are  here  freely  compared,  and  their  lines  of  legal  thought 
placed  in  proper  contrast.  Statute  models,  forms  of  wills,  and 
practical  suggestions  to  testators  will  be  found  in  the  Appendix. 
In  all  matters  which  pertain  to  probate  practice,  it  is  believed  that 
these  two  volumes  will  be  found  ample  for  general  study  and  refer- 
ence; while  under  the  final  head  of  Testamentary  Construction,  in 
this  volume,  all  the  guiding  principles  are  set  forth,  it  is  hoped, 
with  sufficient  fulness  and  precision. 

The  only  American  work  which  may  be  thought  to  have  occupied 
before  a  field  like  this  is  the  well-known  and  popular  one  of  Judge 
Redfield.  But  tBe  peculiar  preparation  of  that  work  was  such 
that  further  revision  from  the  author's  hand  was  looked  for ;  and 
with  the  death  of  that  accomplished  scholar  and  revered  friend, 
more  than  ten  years  ago,  and  the  extinction  of  his  family  line,  not 

ix 


X  OKIGIXAL   PEEFACE   TO   WILLS. 

only  has  revision  failed  altogether,  but  other  writers  need  no  longer 
feel  delicate  in  taking  up  the  task  anew.  The  present  author  may 
truly  say  that  he  has  found  far  less  assistance  from  that  work  than 
from  those  English  standard  authorities,  Williams  and  Jarman, 
as  annotated  by  our  competent  American  editors^^  The  brief 
treatises  of  Hawkins  and  Sir  James  Wigram  have  proved  service- 
able, too,  under  the  head  of  Testamentary  Construction;  also 
Wharton  and  Stille  on  Medical  Jurisprudence,  where  the  wills  of 
insane  persons  are  discussed.  All  such  assistance,  English  or 
American,  is  fairly  sho^^Ti  by  the  citations  at  the  foot  of  each  page ; 
and  the  present  writer  has  collected  his  own  materials,  besides,  re- 
lying throughout,  as  usual,  upon  his  independent  investigation  of 
the  law,  and  bringing  the  decisions,  English  as  well  as  American, 
as  nearly  as  possible  to  the  date  of  publication. 

JAMES  SCHOULER. 
Boston,  January  1,  188Y. 

1  Williams  on  Executors  and  Administrators,  7th  English  edition  (Perkins's 
American  notes),  and  Jarman  on  Wills,  4th  English  edition  (Bigelow's  Ameri- 
can notes)   are  cited  in  the  present  work. 


TABLE  OF  CONTENTS. 

Volume  I. 


PAKT  I. 

INTEODUCTORY    CHAPTER. 
NATURE   AND   ORIGIN   OF  TESTAMENTARY   DISPOSITION. 

Page 

§  1.     Definition    of    Will ' 1 

2.  Last  Will  and  Testament ;  Testament  and  Testator 2 

3.  Gift,   Devise ;    Bequest 3 

4.  Property :  Real,  Personal  and  Mixed 4 

5.  Legacy 4 

6.  Wills,  Written  and  Unwritten,  or  Nuncupative 6 

7.  Codicils,  or  Postscripts  to  Wills 5 

8.  "Will"    includes    "Codicil" 7 

9.  Testaments  in  the  Civil  Law;   Special  Kinds;   Mystic,  Holograph, 

etc 7 

10.     When    a   Will    or    Testament    comes    into    Force;    Revocation   and 

Alteration 8 

IL     Effect  of  a  Subsequent  Statute  upon  One's  Will 8 

12.  Origin  of  Wills;  Natural  Law  of  Succession 10 

13.  Origin  of  Wills;  Historical  Views  of  Succession 11 

14.  Origin  of  Wills  in  England 14 

15.  The  Same  Subject:    Devises  of  Land 15 

16.  Origin  of  Wills  in  the  United  States 16 

16a.  Latest  American  Decisions   17 

17.  Prevalent  Rule  of  Succession;  the  Will  of  the  State  and  the  Will  of 

the   Individual 17 

18.  The  Same  Subject:    where  the  Will  of  the   State  is  Paramount 19 

19.  The  Same  Subject:     Husband  and  Wife 19 

20.  The  Same  Subject:    Children  unprovided  for 20 

21.  The  Same  Subject:    Gifts  Void  as  creating  Perpetuities,  for  Super- 

stitious Uses,  etc 21 

21a.  The  Same  Subject:    Gifts  to  Superstitious  Uses,  etc 23 

22.  The  Same  Subject:    Gifts  Subversive  of  Good  Morals 24 

23.  The  Same  Subject:    Personal  Incapacity  to  take  under  a  Will 25 

24.  The  Same  Subject:    Incapacity  of  Corporations 27 

25.  The  Same  Subject:    Infancy,  Insanity,  Coverture,  etc.,  does  not  in- 

capacitate from  taking 30 

26.  The  Same  Subject:    Maxims  of  Testamentary  Construction 30 

(xi) 


Xii  TABLE    OF    CONTENTS    IN    VOLUME    I. 

Page 

§  27.     The   Same  Subject:     General   Conclusion 31 

28.  What  mav  be  given  by  a  Will 32 

29.  The  Same  Subject:    Property  acquired  after  the  Will  was  made..  34 
29a.  The  Same  Subject:    Property  held  jointly,  etc.;    Partners 36 

30.  Scpoe  of  Investigation  to  be  pursued 36 

30a.  Legal    Principles    and    Illustrations 37 


PART  II. 

CAPACITY   AND    INCAPACITY    TO    MAKE    A   WILL. 

CHAPTER  I. 
TESTAMENTARY    CAPACITY    IX    GENERAL. 

§  31.  What  Persons  may  make  a  Will:    General  Rule 39 

32.  Measure  of  Capacity  the  Same  as  to  Property  Real  or  Personal. .  .  39 

33.  Whetlier  Crime  disqualifies  from  making  a  Will 40 

34.  Whether  Aliens   may  make  Testamentary  Disposition 41 

35.  The  Same  Subject:    Theory  of  a  Devisable  Title 42 

36.  The  Same  Subject:    Modern  Statutes  affecting  the  Disability....  43 

37.  Wliether  a  Sovereign  may  make  a  Will 45 

38.  Wills    of    Seamen,    etc 46 

CHAPTER  II. 

INCAPACITY    OF    INFANTS. 

S  39.     Incapacity   of   Infants   founded   in   their   Indiscretion 47 

411,  41.     Earlier  Rule  more  Favorable  to  Infants'  Wills  than  that  of  the 

Present  Day 47,  48 

42.  Infant's  Will  Invalid,  where  Want  of  Discretion,  etc.,  is  sliown .  ...  50 

43.  Modern  Legislation  treats  the  Wills  of  Infants  with  Disfavor.  ...  50 

44.  Infant'.s   Appointment  of  a   Testamentary   Guardian 51 

CHAPTER  III. 

INCAPACITY    OF    MARRIKD    WOMEN. 

§  4r>.     Inrftfinrity  at  Cr)miiioii  Law  arising  from  Ci)vcrturc 53 

4ft      .Nfarridgo  a   Hrvocation 54 

47      .Modfrn  Chnngi's  effected  by  Courts  and   Legislation  as  to  Wife's 

Inrnpnrity 5,5 

48.     ExroptionH    tf»    Inrnpncity:    Wif.'    may    tx-cpicath    with    Husband's 

Aimont   55 


TABLE   OF  CO^^TEJN'TS   IX    VOLUME    I.  XIU 

Page 

§  49.     The    Same    Subject:     American    Rule 57 

50.  Wife's  Disposition  as  Executrix 58 

51,  52.     Wife's  Will  of  Separate  Property;  English  Rule 59,  61 

53.  The  Same  Subject:   where  Spouses  live  apart 62 

54.  Wife's  Will  of  Equitable  Separate  Property;   American  Rule 63 

55.  Modern  English  Statutes  of  Wills 64 

56.  57.     Wife's  Will  under  Late  American  Statutes 05,  60 

58.  Wife's  Will  under  the  Civil  Law;   Present  Tendency  to  Conjugal 

Equality   69 

59.  Re-execution   of   Will  after  Coverture;    Expectant  Property,   etc..  70 

60.  Devise  or  Bequest  to  the  Husband;   his  Marital  Influence 71 

61.  Husband's   Agreement   as   to   Wife's   Testamentary   Disposition   of 

]*er   Lands    72 

62.  Mutual  Wills  of  Husband  and  Wife 72 

63.  Wife's   Gift    Causa   Mortis 73 

64.  Wife's  Execution  of  a  Testamentary  Power 74 

CHAPTER  IV. 

INCAPACITY  OF  INSANE  PERSONS  IN  GENERAL. 

§  65,  66.     Will  of  an  Insane  Person  Void;  Difficulty  of  Modern  Tests     76,  77 

67.  Standard  of  Mental  Incapacity  in   Wills  as  compared  with   Con- 

tracts,   etc 78 

68.  General  Standard  of  Testamentary  Capacity  stated 81 

69.  The  Same  Subject:    More  Deference  to  Testator  in  Earlier  Cases.  83 

70.  Incapacity  is  more  than  Weak  Capacity;   Enfeebled  Testator  may 

make   a   Will    Si 

71.  The  Same  Subject:  the  Testator's  Mind  should  act  without  Prompt- 

ing ;    Attention   aroused,   etc 87 

72.  The  Test  of  Testamentary  Capacity  should  be  referred  to  the  Par- 

ticular  Instrument   and   Transaction 87 

73.  Testamentary  Capacity  consistent  with  Execution  of  a  Will  in  Ex- 

tremis      88 

74.  Testamentary  Capacity  consistent  with  Insane  Delusions,  etc 89 

75.  Modes  of  testing  Capacity,  as  between  Monomania  and  Habitual 

Insanity 90 

76.  Effect  of  Insanity  where  a  Will  a'nd  Codicils  are  executed 90 

77.  Unjust  and  Foolish  Wills  viewed  with  Suspicion 91 

78.  The  Just  Will  of  an  Insane  Person  considered 93 

79.  Manner  of  making  and  executing  the  Will 94 

80.  Testamentary  Capacity  as  contrasted  in  Complex  and  Simple  Es- 

tates    94 

80a.  Mistake  as  to  Legal  Effect  of  Will,  etc.,  does  not  incapaciate 94 

81.  Will  of  one  under  Guardianship  not  necessarily  Void O-i 

82.  The  Same  Subject:    Adjudication  of  Idiocy 97 

83.  Sound  and  Disposing  Mind  and  Memory 97 


Xiv  TABLE    OF    CONTENTS    IN    VOLUME    I. 

**       -  Page 

§  84.     Testamentary  Capacity  not  dependent  upon  Sound  Health 98 

85.  Classification  of  Insanity;   the  Various  Kinds 99 

86.  The    Same    Subject:    Insanity    Defined 100 

87.  Psychology  of  Mental  Unsoundness,  and  Unity  of  the  Disorder..  101 

88.  Courts  apply  Practical  Tests  without  attempting  Exact  Classifi- 

cation    102 

89.  Testamentary  Capacity  as  applied  in  Tests  of  Mental  Unsoundness 

or  Coercion   102 

89a.  Each  Case  should  be  tested  by  its  own  Facts,  etc 103 

CHAPTER  V. 

INCAPACITT    OF   IDIOTS,    IMBECILES,   AND   PEBSONS    DEAF,   DUMB,   AND    BLIND. 

§  90,  91.     Idiots  are  Incapable;   What  is  Idiocy 104,  105 

92.  Idiots  and  Utter  Imbeciles  have  no  Testamentary  Capacity....  106 

93.  The    Same    Subject    illustrated 107 

94.  Persons  born  Deaf,  Dumb,  and  Blind 107 

95.  The  Same  Subject;  Unfavorable  Presumption,  if  any,  may  be  over- 

come    109 

96.  Persons  Deaf,  Dumb,  or  Blind,  but  not  born  so,  presumed  Ca- 

pable      110 

97.  Liability  of  Deaf,  Dumb,  and  Blind  to  Imposition  and  Error.  ...  Ill 

98.  The  Same  Subject:  Wills  of  Blind  Persons 112 

99.  General  Conclusion  as  to  the  Wills  of  the  Deaf,  Dumb,  and  Blind  113 

CHAPTER  VI. 

LUNACY   AND   GENERAL   MENTAL  DERANGEMENT. 

§  100,  101.     Scope  of  Present  Chapter;  Lunatics  and  Others  of  Mental 

Unsoundness  in  the  Medium  Degree 115,  116 

102.  The  Same  Subject:   Illusions  or  Perversions 117 

103.  .Attempts  of  Experts  and  Others  to  classify  Insanity 1*17 

104      Common  Symptoms  or  Manifestations  of  Insanity 118 

105.  The  Will  of  a  Lunatic  or  one  Mentally  Diseased  is  Invalid...  119 

106.  Effect  of  Restoration  to  Health,  and  Intermittent  Insanity....  119 
\()7.     Lucid    Intervals   120 

108.  Lucid  Intervals,  as  distinguished  from  Mere  Abatement  of  Mania, 

ttc 121 

109.  Lucid  Intervals  in  Cases  which  involve  Testamentary  Capacity  122 

110.  Will  may  be  e.stahlislicd  as  made  during  a  Lucid  Interval;  Bur- 

den   of    Proof    123 

IIL     Lucid    Intervals;    Clear   and    Satisfactory    Proof   required 125 

1)2.     CircumBtnnceH  Favorabh;  to  Proof  of  L\jcid  Interval;  a  Just  and 

Natural    Will    126 

11.'!      otii.r  < 'irctirii^f.inr-cH  ravorabic  to  Proof  of  Lucid  Interval 129 


TABLE  OF  CONTENTS  IN  VOLUME  I.  XV 

Page 

§  114.     Lucid  Intervals  more  easily  established  in  Delirium,  etc.,  than 

in   Habitual   Insanity    130 

115.  Proof  should  be  scrutinized  where  Mental  Disease  is  Insidious 

and   Slow    130 

116.  Doubtful  Instances  of  Mental  Derangement;  Paralysis,  Prostra- 

tion, etc 131 

117.  The  Same  Subject  illustrated:  Mississippi  Case 132 

118.  The  Same  Subject:  Other  Illustrations:  Epilepsy,  Apoplexy,  etc.  133 

119.  Mental  Condition  nearly  Contemporaneous  with  the  Will,  etc...  134 

120.  Suicide  not  Conclusive  of  Insanity 135 

CHAPTER  VII. 

DELIBIUir,  DRUNKENNESS  AND  DEMENTIA. 

§  121.     Delirium  of  Disease  and  its  Symptoms 136 

122,  123.     Delirium  Incapacitates;  Effect  of  Lucid  Intervals 137,  138 

124.  Delirium  Tremens,  and  Drunkenness  or  Intoxication  in  Greneral.  139 

125.  The  Same  Subject:    Drunken  Habits  may  impair  the  Reason...  140 

126.  When  Intoxication  invalidates  a  Will,  and  the  Reverse 141 

127.  Burden  of  Proof,  etc.,  where  Drunkenness  is  alleged 143 

128.  The  Rule  of  Testamentary  Capacity  in  Drunkenness  illustrated.  143 

129.  Dementia  as  distinguished  from  Mania  or  Delirium 144 

130.  S«nile  Dementia,  or  the  Mental  Decay  of  the  Aged:  Litigation  on 

this  Ground 145 

131.  The  Same  Subject:  when  the  Mind  begins  to  decay 147 

132.  The  Same  Subject:   Loss  of  Memory  One  of  the  First  Symptons 

of  Mental   Decay    148 

133.  The  Same  Subject:  Casual  Observers  Untrustworthy  as  compared 

with  those  Familiar  with  the  Testator 148 

134.  Senile  Dementia  disqualifies  One  from  making  a  Will,  but  not 

Old  Age  Alone 149 

135.  136.     Wills  of  the  Aged  should  be  tenderly  regarded 150 

137.  Instances  in  which  Wills  of  the  Aged  have  been  sustained 152 

138.  The  Same  Subject:  Circumstances  favoring  Probate  of  the  Will.  153 

139.  Extreme  Old  Age  suggests  Vigilance  in  Probate;  Mental  Imbecil- 

ity vitiates 154 

140.  Instances  in  which  Wills  of  the  Aged  have  not  been  sustained. .  .  155 

141.  Rule  of  Capacity  for  Dementia  not  Different  from  that  for  Mania  156 

142.  Opinions  as  to  the  Capacity  of  an  Aged  Testator  carry  no  Great 

Weight  in  Doubtful  Cases   157 

CHAPTER  VIII. 

MONOMANIA  AND  INSANE  DELUSIONS. 

5  143.     Monomania  a  Preferable  Term  to  Partial  Insanity;  the  Mind  a 


Unit 


158 


XVI  TABLE    OF    CO^'TEXTS    IN    VOLUME    I. 

Page 
§   144.     Monomania  defined:  how  distinguished  from  Eccentricitj' ;  Insane 

Delusions _ 159 

145.  The  Same  Subject:   Eccentricity  further  distinguished 161 

146.  Insane  Delusion  has  no  Basis  in  Reason;   Reason  and  Evidence 

cannot  dispel  it 162 

147.     Delusions,  Sane  or  Insane,  in  General 163 

14S.     Delusions  which  do  not  involve  Mental  Incapacity 164 

149.     Whimsical  or  Eccentric  Behavior  Does  not  incapacitate 165 

150,  151.     Illustrations  of  Eccentric  Wills 165,  167 

152.  Eccentric  Habits  may  afford  Evidence  of  Insane  Delusion 168 

153,  154.     Monomania  or  Insane  Delusion  involves  Derangement;   its 

Selfish  Manifestations  168,  169 

155,   156.     English  Opinions  of  Monomania  as  affecting  Testamentary 

Capacity 170,   172 

157,  158.     English  Cases  stated  where  Wills  were  refused  Probate  be- 
cause of  Insane  Delusion 174,  176 

159.  American  Maxims  as  to  the  Effect  of  Monomania  upon   Testa- 

mentary Capacity   • 177 

160.  American  Cases  stated  where  the  Will  of  a  Monomaniac  was  sus- 

tained       179 

161.  American  Cases  stated  where  the  Will  of  a  Monomaniac  was  not 

sustained 180 

161a.     Sudden  Manifestations,  etc 182 

162.  163.     Insane  Delusion  to  be  distinguished  from  Prejudice  or  Error, 

as  well  as  Eccentricity 182,  184 

164.  Where  Will  is  not  tainted  by  the  Prejudice,  Error,  etc 185 

165.  Rational  or  Irrational,  Just  or  Unjust,  Character  of  the  Will  to 

be   considered    185 

166.  167.     Leading  Principles  applied  to  Religious  Opinions;   Delusions 

upon  Matters  Supernatural,  etc 187,  188 

108.     Wills  of  Persons  believing  in  Witchcraft,  Spiritualism,  Clairvoy- 
ance, etc 189 

CHAPTER  IX. 

PROOF  OF  CAPACITY   AXI)   IXCAPACITY. 

f   inrt.     In  Uncontested  Cases  of  Probate,  nuuh  is  taken  for  granted  by 

tlie  Court   191 

I7'i.      In  Contested  Cases,  the  Burden  of  Proof  is  upon  the  Propounder 

of  tlie  Will    192 

171       The  Rule  of  Burden  of  I'roof  sometimes  laid  down  otherwise  as 

to   Mental   Capacity 193 

17J.     Burden   of   proving  Capacity;    Presumption    in    favor   of   Sanity; 

ConfiiHinn  of  RuleH 104 

173.  EngliMli  Authorities  on  this  Subji'ct 195 

174.  Amerirnn   AiithoritieH  on   this  Subject 196 


TABLE  OF  CONTENTS  IN   VOLUME  I.  XVll 

Page 
§   175.     The  Same  Subject;    wliether   Subscribing   Witnesses   must  first 

testify  as  to  Insanity 199 

176.  Where  Evidence  of  Unsoundness  appears  from  Examination  of 

Witnesses,   Proponent   must   overcome   it 202 

177.  Production  of  Subscribing  Witnesses  if  possible 203 

178.  Testimony  of  Subscribing  Witnesses  Important,  but  not  Conclu- 

sive      204 

179.  English  Practice  as  to  producing  the  Subscribing  Witnesses 205 

180.  Declarations  of  Deceased  or  Absent  Subscribing  Witnesses  Incom- 

petent as  to  Sanity  or  Insanity 206 

181.  182.     How   Witnesses   may   test    Capacity    for   themselves;    they 

should  not  Execute  unless  satisfied 206,  208 

183.  Effect  of  a  Statement  in  the  Attestation  Clause,  vouching  for  the 

Testator's  Sanity  209 

184.  Proponent  goes   forward  and   has  Right   to   open   and  close   the 

Case 209 

184a.  Prima  Facie  Case,   how   established 210 

185.  Questions  of   Validity   at   Issue;    Testamentary   Capacity   to   be 

determined   upon   all   the   evidence 210 

186.  Testamentary  Capacity  at  the  Date  of  the  Transaction  the  Real 

Point  at  Issue 211 

187.  Various  Matters  of  Proof  bearing  upon  this  Issue:  Insanity  once 

shown,  presumed  to  continue,  etc 212 

188.  The  Same  Subject:    Proof  of  General  Insanity 213 

189.  The  Same  Subject:    Proof  of  Lucid  Interval  or  Restoration....  216 

190.  The  Same  Subject:    Proof  of  Monomania  or  Insane  Delusion 217 

191.  Proof  of  Drunkenness,  etc 218 

192.  Personal  History  of  Testator  in  an  issue  of  Insanity;   Autopsy, 

etc 218 

193.  Declarations,  Letters,  etc.,  of  Testator,  how  far  Admissible  as  to 

Mental   Capacity    219 

194.  Miscellaneous  Points  as  to  Evidence  in  Such  Cases 221 

195.  The  Same  Subject:    Declarations  of  those  interested  under  the 

Will 223 

196.  Character  of  the  Witnesses  who  testify  as  to  Capacity 223 

197.  Whether  Unprofessional  Persons  can  give  their  Opinions  as   to 

Insanity , 224 

198.  Subscribing  Witnesses,   though  not   Experts,   may  testify   as  to 

Apparent  Sanity    225 

199.  200.     Whether   Other   Witnesses,    not    Experts,    may    state    their 

Opinions  as  to  Sanity;  Unfavorable  Decisions 226,  229 

201.  The  Same  Subject:      Favorable  Decisions 230 

202.  The  Same  Subject :    English  Rule 233 

203.  Restrictions  where  the  Opinions  of  General  Witnesses  are  Admis- 

sible       233 

204.  Opinion  of  Physicians,  Attendants,  etc 235 

205.  The  Same  Subiject :    Medical  Experts,  etc 236 


Xriii  TABLE  OF  CONTENTS  IX  VOLUME  I.      . 

Page 

§  206.     Expert  Testimony  Admissible  as  to  facts  observed,  or  hypotheti- 
c-ally      238 

207.     The  Same  Subject.   Limitations  to  Such  Expert  Testimony 238 

208     To  what  Time  Opinion  of  Witness  relates;   does  not  extend  to 

Legal  Capacity,   etc 240 

209.  The  Issue  of  Sanity  is  not  to  be  concluded  upon  Mere  Opinions; 

General  Conclusions    241 

210.  Expert  Testimony  further  considered;  Books  of  Medical  Science, 

etc ,242 

211.  Competency  and  Value  of  Expert  Opinion '^  244 

212.  In  what  Manner  Questions  should  be  put  to  an  Expert 244 

213.  General  Conclusion  as  to  Expert  Testimony 245 

213a.  Final  Observations:    Proof  of  Sanity  and  Due  Execution;  Effect 

of  Probate,  Costs,  etc 246 

CHAPTER  X. 

ERROR,.    FRAUD,     AND    UNDUE    INFLUENCE. 

§  214.     Error,  Fraud,  and  Undue  Influence  remain  to  be  considered  in 

Connection  with  Testamentary  Capacity 248 

215.     Fundamental  Error  vitiates  a  Will;  Effect  of  Partial  Errors 243 

215a.  An  Instrument  not  bona  fide  Testamentary  refused  Probate.  .  . .  250 

216-218.     How  far  Errors  may  be  corrected  in  the  Probate..     251,  253,  254 

219.  The  Same  Subject:  expunging  Something  Erroneous,  etc 256 

220.  Equity  Jurisdiction  to  correct  Mistakes -. 257 

221.  Where  Fraud  or  Force  vitiates  a  Will ? 258 

222.  The  Same  Subject:    Importunity  and  Undue  Influence 260 

223.  Equity  Jurisdiction  of  Fraud  and  Force;   Probate  Courts  decide 

Sucli  Questions  260 

224.  General  Considerations  as  to  Fraud  and  Deceit 263 

225.  Fraud,  Undue  Influence,  etc.,  vitiate  when  acting  upon  a  Weak 

though  Capable  Mind 264 

220.     Bodily  and  ^lental  Condition  at  the  Time  of  Execution  of  Great 

Consequence  in  the  Issue 264 

227.  Undue  Influence  defined;  Something  Sinister  is  always  imputed  in 

the  Present  Connection , 265 

228.  How  Undue  Influence  may  be  exerted 268 

229-231.     To  invalidate  a  Will  for  Fraud,  Undue  Influence,  etc.,  Testa- 

tor'rt  Free  Aj^'ency  must  be  overcome 269,  272,  273 

231a.     Bounty  dlHtingulHlied  from  Legal  Duty,  in  Such  Issues 274 

232.  Fraud,   ConHtrnint   and   Undue   Influence   relate   to   the   Time   of 

Execjjtion  ;  (V)nHtraint  removed  later 275 

233.  TfHtnmi-nt  need  nut  originate  with  Testator;  but  the  WJll  must 

b<-  hJH    276 

231.     .\  Will  invnlidatcd  for  Fraud,  Undue  Influence,  etc.,  fails  as  to  All 

wIkih*'  Benefit  is  procured 277 


TABLE  OF  CONTENTS  IN  VOLUME  I.  XIX 

Page 

235.  These  Maxims  applied  to  Parental  and  Filial  Relation 277 

236.  These   Maxims    applied    to    the    Marital    Relation;    a    Wife's    or 

Mother's  Influence,  etc 278 

237.  The  Same  Subject:    a  Husband's  Influence 281 

237a.  Existence  of  an  Illicit  Relation 281 

238.  Fraud,  Undue  Influence,  etc.,  must  have  taken  Effect;  Natural  or 

Unnatural  Will,  etc 282 

239.  Burden  of  Proof,  as  to  Fraud,  Force,  or  Undue  Influence 285 

240.  The  Same  Subject:    Evidence  in  Point  freely  admitted 289 

241.  Proof  of  Fraud,  Forgery,  etc 290 

242.  Character  of  the  Evidence  to  establish  Fraud  or  Undue  Influence .  291 

243.  The  Same  Subject:    Declarations  of  the  Alleged  Testator 294 

244.  Declarations,  Admissions,  etc.,  of  Legatees  or  Parties  in  Interest.  297 

245.  Suspicious  Circumstance  that  the  Will  is  drawn  by  the  Party  de- 

riving a  Benefit 298 

246.  Confidential    Relation    in   General    implies    Opportunities    which 

must  not  be  abused 301 

247.  Proof  that  the  Testator  knew  the  Contents  of  the  Will 305 

248.  Probate  in  Part,  where  Fraud,  Undue  Influence,  etc.,  operated  in 

Part 306 

249.  In   General,   a   Full  Probate  does   not  insure   against  a  Partial 

Failure  in  Effect    307 

250.  Full  or  Partial  Failure  of  Probate  through  Incapacity,  Fraud, 

Error,   etc 308 

251.  Inspection  of  Instrument  by  Jury 309 

251a.  Mental  Capacity  and  Undue  Influence  are  Distinct  Issues 309 

251b.  Undue  Influence:    Subsequent  Parol  Assent  of  Testator  Insuffi- 
cient    309 


PART  III. 

FORMAL  EEQUISITES  OF  A  WILL. 
CHAPTER  I. 

WHAT  CONSTITUTES  A  WILL. 

§  252.     Wills   are  written    or   unwritten;    Modern    Legislation    requires 

most  Wills  to  be  in  Writing  and  duly  witnessed 311 

253.  Real  and  Personal  Property  now  treated  alike;  but  not  so  form- 

erly   ' 312 

254.  But  American  Statutes  relating  to  Wills  are  of  Local  Origin.  ...  314 

255.  Holograph  Wills;  how  far  recognized  by  Legislation 314 

255a.  Will  dra^vn  up  by  Another 316 


XX  TABLE  OF  COXTEXTS  IX  VOLUME  I. 

Page 
§  256.     Other  statute  Peculiarities  as  to  Form,  Signature,  and  Attesta- 
tion        317 

257.  A  Will  not  properly  e.xecuted  and  attested,  is  Inoperative  under 

Modern  Statutes 318 

258.  Requirement  of  Writing,  how  satisfied;  Materials  to  be  used..  ..     319 

259.  Language,  Native  or  Foreign,  in  which  a  Testament  should  be  ex- 

pressed      321 

260.  A  Will  should  be  legibly  written 322 

261.  A  Will  need  not  be  dated,  etc 322 

262.  Formal  Words  like  "  Will,"  "  Testament,"  "  Devise,"  "  Bequest," 

are  not  Essential 322 

263.  A   "  Will "   is   Something  Imperative,  though   Softer  Words  are 

employed 323 

264.  The  General  Form  of  Testamentary  Instruments ;  Effect  of  Legis- 

lation        324 

265.  266.     Xo  Testamentary  Form  Requisite,  if  there  be  the  Testamen- 

tary Intent 325,  326 

267.  Whether  an  Instrument  is  Testamentary  or  not,  where  Statutes 

require  an   Attestation,   etc 328 

268.  The  Same  Subject 330 

268a.  The  Same  Subject;  Miscellaneous  American  Cases 332 

269.  The  Same  Subject:   Miscellaneous  English  Cases 333 

270.  Whether  One  Instrument  may  be  partly  a  Deed  or  Contract  and 

partly   a    Will    334 

271.  A  Will  is  to  be  distinguished  from  a  Gift  Inter  Vivos  or  Causa 

Mortis 335 

272.  273.     The  Test  in  Doulitful   Cases  as  between  a  W^ill  and   Some 

Other  Instrument 336,  338 

274.  Posthumous  and  Ambulatory  or  Revocable  Character  of  a  Will.  .      339 

275.  What  a  Testator  executes  as  his  Will,  should  so  operate,  not- 

withstanding his  Mistake  of  Law 340 

276.  Writings,  otherwise  intended  by  tlie  Maker,  how  far  upheld  as 

Testamentary   by   the   Courts 341 

277.  E.xtrinsic  Evidence  not  Admissible  to  dispute  the  Plain  Tenor  of 

the  Instrument;   Effect  of  Doubt,  etc 342 

277a.   Doubtful   Writing,   if   Pronounced  a  Will,   fails  unless   formally 

executed 343 

278.  Wills  made  in  Jest  or  without  the  Animus  Testandi,  etc 343 

279.  Regular  Pafiers  imply  tlie  Animus  Testandi;  otherwise  with  Pa- 

pers wliich  iire  not  on  their  Face  Testamentary 344 

2S0.     SfVfTiil  I'lipfTH  probated  togctlier  as  constituting  a  Will;  Will  amt 

CodicilH,  etc 344 

2KI.     In«<JnimfntH    Incorporated    in    the    Will    nml    Documents    extra- 

ncoiiH   345 

2><2.     Tlip  Same  Subject:    Parol   Evidence,  liow  far  Admissible;    L;ittr 

A'b.y.iion   in   Form;   Burden  of  Proof 347 


TABLE  OF  CONTENTS  IN  VOLUME  I.  XXI 

Page 

283.  Reference  of  Will  to  a  Lost  or  Inaccessible  Will  or  Writing 349 

284.  Will  may  be  written  on  Several  Sheets  incorporated  together.  .  .  349 

285.  286.     Wills   Conditional   or   Contingent 350,  351 

287.  The  Same  Subject;    English   Cases 352 

288,  289.     The  Same  Subject;   American  Cases 354,  356 

290.  The  Same  Subject:  Bearing  of  Extrinsic  Evidence  in  Such  Cases  357 

291.  Wills  may  take  Effect  in  the  Alternative 358 

292.  Contingency  or  Condition  not  to  be  supplied  by  Parol  Proof....  358 

293.  Operation  of  Will  left  to  the  Discretion  of  Another 359 

294.  Papers   which   cannot  be  probated   as   Wills;    Wills   merely   ap- 

pointing  a   Guardian;    appointing  to   a   Situation;    excluding 

from  Inheritance,  etc 359 

295.  The  Same  Subject:  W^ills  which  merely  dispose  of  Real  Estate.  .  360 

296.  The  Same  Subject:   Writings  which  merely  revoke 361 

297.  Wills  Good  which  simply  nominate  an  Executor;   Wills  without 

an  Executor 362 

298.  Wills  Good  which  make  only  a  Partial  Disposition,  or  distribute 

as   in  Case  of   Intestacy 362 

298a.  Will   Good,    notwithstanding   Blank   Spaces 363 

299.  Wills   executed  under   a   Power 363 

299a.  Proponent  of  a  Will  must  prove  its  Execution 364 

299b.  Valid    and   Invalid   Provisions 364 

CHAPTER  II. 

SIGNATURE  BY   THE  TESTATOR. 

300.  Statute  Requirements  as  to  signing;   English  Rule 365 

301.  Statute   Requirements  as  to   Signing;    American  Rule 366 

302.  Whether    Execution    signifies    more    than    Signing,    or    includes 

Attestation 367 

303.  304.     Will  may  be  signed  by   the  Testator,   or  his  Mark   made, 

etc 367,  369 

305.  A  Prudent  Testator  will  write  out  his  own  Signature  if  he  can.  370 

306.  Local   Variations   of   Rule;    Signature  by  Testator   himself   and 

by    another    distinguished    371 

307.  The   Same   Subject :    English   Rule 373 

308.  Testator's  Name  may  be  affixed  by  a  Subscribing  Witness 374 

309.  Seals  are  dispensed  with;   Sealing  is  not  "Signing" 374 

310.  Misnomer   or   Discrepancy   in   the   Signature,   etc 375 

311.  Position   of   the   Signature;    English   Rule 376 

312.  Position  of  the  Signature;   American   Rule 379 

313.  Whatever  the  Place,  a  Signing  must  have  been  intended 383 

314.  One  Signature  or  more  for  Several  Sheets 383 

315.  One  Signature  where  Will  has  been  written  by  Portions 384 

316.  Signatures  may  be  upon  Paper  fastened  to  the  Will 384 


Xxii  TABLE  OF  CONTENTS  IN  VOLUME  I. 

Page 

§  317.     Wills    of    Blind.    Disabled    and    Illiterate    Persons:    how    made 

known  to  them   384 

317a.  Testator's  Understanding  on  the  issue  of  Execution 386 

CHAPTER  III. 

ATTESTATIOX   AND   SUBSCRIPTION    BY    WITNESSES. 

§  318.  Attestation  or  Subscription  independently  of  Statute 387 

319.  Attestation  under  Modern  Statutes 388 

320.  Number  of  Subscribing  Witnesses  required 390 

321.  Signing  or   acknowledging  before  the   Witnesses;    English  Rule  391 

322.  The  Same  Subject:   Presumption  of  Due  Attestation 393 

323.  Signing  or  Acknowledging  before  the  Witnesses;  American  Rule  394 

324.  The  Same  Subject:  Rule  in  Massachusetts,  etc.,  where  Will  is  to 

be  acknowledged 395 

325.  The  Same  Subject:   Rule  in  New  York,  etc.,  where  Signature  is 

to    be    acknowledged    397 

326.  Publication  or  Declaration  that  the  Instrument  is  a  Will 398 

327.  Simultaneous  Presence  of  Witnesses 402 

328.  Subscription  by  Testator  after  the  Witnesses;   Acknowledgment 

by    Witness    not    Acceptable 403 

320.     Request  to  Witnesses  to  sign 407 

330.  Attestation   and    Subscription    distinguished 408 

331,  332.     What  is  Signing  or  Subscription,  by  the  Witness 409,  410 

333.  Signing  or  Subscription  Insufficient,  wliere  a  Complete  Intent  to 

subscribe   was   wanting,    etc 411 

334.  Subscription  must  be  Animo  Attestandi;  noting  Interlineations, 

etc 411 

335.  Position   of   the   Signature 412 

33f!.     The  Same  Subject:   Attestation  on  a  Different  Paper 414 

337.  TJie  Same  Subject:   Attestation  where  a  Will  is  written  on  Sev- 

eral   Sheets    415 

338.  "Signing"  and   "Subscribing"   Equivalent   Terms;    Differences 

as   between    Testator   and    Witness 416 

339.  Wliethor  another  may  sign  for  the  Subscribing  Witness 416 

340.  341.     Subscribing  "in  Presence  of"  the  Testator,  etc.;    English 

Kiih'    418,420 

342.     SiibfirTibing  "in  Preaoncc  of"  the  Testator,  etc.;  American  Rule     422 
:M.'(.     Siibs(ri|ition  "in   Presence  of"  a  Testator  Unable  to  see;   Cog- 

iii/.aiicc  wliicli  (li.s[)(>nHcs  with  Sight 425 

.'in.     Certificate  of  .Arknowh'dgmeiit  Siipcilinous  Matter;  Magistrate, 

etc. ;    Other   rormalitics    427 

345.     Rc-exocution,  etc.,  if  Necessary,  sliouM  be  conducted  with  Care- 
ful   Regard    for    FormalitieH 427 

316.     AtteHtation  Clause ;    no  EsHential  Part  of  a  Will,  but  of  Groat 

Convenience ^28 


TABLE  OF  CONTENTS  IN  VOLUME  I.  XXIH 

Page 
§  347.     Attestation    Clause,   Proof   that   all   Formalities   were   complied 

with,   etc 430 

348.  Subscribing  Witnesses  much   relied  upon;    Effect  of  Other  Tes- 

timony     348 

349.  Attestation  to  the  Sanity  of  the  Testator;   Presumption,  etc...  433 

350.  "  Credible  "  or  "  Competent  "  Witnesses:   who  are  Such 434 

351.  Competency  on  Common-law  Principle;  as  referring  to  Date  of 

Subscribing,   etc 435 

352.  Mental  Disqualification  as  a  Witness;    Disqualification  of  Chil- 

dren, Women,  etc 437 

353.  Disqualification  of  Interest  in  a  Subscribing  Witness 438 

354.  The  Same  Subject:  Judges,  Executors,  Incorporators,  etc 439 

355.  The  Same  Subject:  whether  Husband  and  Wife  are  Competent 

for  One  another    441 

356.  Creditor  or  Remote  Beneficiary,  whether  a  Competent  Subscrib- 

ing Witness   441 

357.  Legacies  or  Devises  to  Attesting  Witnesses  annulled  by  Statute  442 

358.  Competency  of  Interested  Witnesses;  Miscellaneous  Legislation; 

Devise   to  Heir,   etc 444 


CHAPTER  IV. 

NUNCUPATIVE   OK    OBAL    WILLS.  ( 

359.  Wills  and  Codicils  usually  require  a  Formal  Execution;'  Excep- 

tions stated ;  Unattested  Wills,  Oral  Wills,  etc 445 

360.  Oral  or  Nuncupative  Will;   Definition;    Such  Wills  rarely  per- 

mitted      445 

361.  History  of  Nuncupative  Wills  prior  to  the  Statute  of  Frauds..  446 

362.  Nuncupative  W^ills  affected  Personal  but  not  Real  Estate 448 

363.  Restraints  upon  Nuncupative  Wills  under  the  Statute  of  Frauds  448 

364.  Nuncupative   Wills  virtually  abolished  by   Statute  of  Victoria, 

except  as  to  Soldiers  and  Mariners 450 

365.  American  Legislation  and  Policy  concerning  Nuncupative  Wills.  451 
366-368.     Soldiers,    Mariners,    etc. :     who    constitute    this    Privileged 

Class 453,  455,  458 

369.  Points  to  be  considered  in     Nuncupative  Wills;   distinguishing 

Testators   Privileged    and    Unprivileged 458 

370,  371.  Whether  the  Testament  must  be  made  in  Extremis. .  ..      459,  460 

372.  The  Place  of  Making  the  Will 462 

373,  374.     The   Manner   of   Declaring   One's   Disposition 462,  464 

375.  The  Requisite  Number  of  Witnesses  to  the  Will 465 

376.  Subsequent  Reduction  of  the  Nuncupative  Will  to  Writing....  466 

377.  Strictness  of  Proof  as  to  all  Material  Facts 467 

378.  Informal   Writings,  whether   \ipheld   as   Nuncupative   Wills....  468 

379.  Repeal  or  Alteration  of  a  Written  Will  by  a  Nuncupative  One.  469 


XXIV  TABLE  OF  CONTENTS  IN  VOLUME  I. 

PART  IV. 

REVOCATION,    ALTERATION,    AND   REPUBLICATION    OF    WILLS. 

CHAPTER  I. 
BEVOCATIO:^    OF    WILLS. 

Page 
§  380,   381.     Various  Modes  of  Revocation;    Modern   Legislation  affects 

the    Subject    47i,  472 

382.     Oral  or  Implied  Revocation  not  recognized 474 

383     Revocation  by  Burning,  Tearing,  Cancelling,  Obliterating,  etc....  475 

384.  The  Same  Subject:   the  Same  Intention  to  revoke  must  accom- 

pany the   Act    476 

385.  Will    destroyed,    etc.,    unintentionally,    to    be    established    as    it 

existed 477 

386.  Effect  of  Intention  to  revoke  where  the  Act  does  not  correspond.  478 

387.  Burning,  Cancelling,  etc.,  must  be  by  Testator  himself,  or  under 

his  Direction,  etc 479 

388.  No  Witnesses  Necessary  to  the  Burning,  Cancelling,  etc 481 

389.  390.     Destruction  of  a  Will  by  Burning,  Tearing,  etc.,  illustrated: 

English    Cases    482,  483 

391,    392.     Cancelling,    Obliterating,    etc.,    illustrated:     English    Cases 

484,  485 
393,    394.  Burning,    Tearing,    Cancelling,    etc.,    illustrated:     American 

Cases   486,  487 

395,    396.     Incomplete    Burning,    Tearing,    Cancelling,   etc 489,  491 

397.  Revocation  of  a  Part  only  of  a  Will  by  Destruction 492 

398.  Difficult^'  where  the  Revocation  depended  upon  Another  Act.  .  .  495 

399.  Revocation,  where   Wills  are  executed   in  Duplicate 497 

400.  Effect  of  Destroying,  etc..  Will,  but  not  Codicil 498 

401.  Presumptions,  etc.,  where  Will  is  found  mutilated,  defaced,  etc.  499 

402.  Prc'sumptiofi,  etc.,  where  Will  cannot  be  found 501 

403.  Declarations  of  the  Testator  in  issues  of  Revocation 503 

404.  Rr-v(>oati(m  by  Subsequent  Will  or  Codicil 504 

405.  Swlwequf-nt  Will  does  not  revoke  unless  duly  executed 505 

406.  If  .Subsequent  Will  dispose  inconsistently,  it  is  enough 506 

407.  But  Later  Will  does  not  revoke  unless  inconsistent 507 

408.  Intention  to  revoke  must  be  Immediate,  and  not  Prospective  or 

Dependent 509 

409.  In'lination  against  Revocation;  I'se  of  a  Codicil 509 

410.  Revocation   by   Subsequent   Will    under   a   False   Assumption   of 

Facts    511 

411.  Two  Wills  of  the  Same  Date,  etc 512 

41:.'.     Whcr*;  Ri-voking  Will  cannot  bo  found;  Proof  of  Revocation,  etc.  512 
413.     Whether  tlie  Revocation  of  a  Later  Will  can  rerive  an  Earlier 

One 513 


TABLE   OF   CONTENTS   IN    VOLUME   I.  XXV 

Page 

§  414.     The  Same  Subject:    Present  English  Rule 515 

415.  The  Same  Subject:    American   Rule 516 

416.  Reference  of  Codicil  to  Either  of  Two  Wills 519 

417.  418.     Express  Revocation  by  Later  Will,  etc 519,  520 

419-421.     Express  Revocation  by  Other  Writing 521,  522,  523 

422.  The    Same   Subject:    Latest    Legislation 524 

423.  Evidence  under  a   Written  Revocation 526 

423a.  Miscellaneous   Instruments  considered    526 

424.  Revocation  by  Inference  of  Law;  Effect  of  Subsequent  Marriage.  526 

425.  426.     The  Same  Subject:  Marriage  and  Birth  of  Child 529,  531 

426a.  Effect  of  Full  Divorce    534 

427.     Other  Cases  of  Implied  Revocation ;  Alteration  of  Estate,  etc.  .  .  535 
427a.  Mental  Incapacity,  Fraud,  Force  and  Error,  in  issues  of  Revoca- 
tion    537 

CHAPTER  II. 

ALTERATION  OF  WILLS. 

S  428.     Tlie  Word  "Alteration;"  Alteration  of  Disposition  or  of  an  In- 
strument;   Partial  Revocation 539 

429.  Alteration  of  the  Instrument  to  be  first  considered;   Testator's 

Right  to  alter    539 

430.  General  Right  of  Testator  to  alter 540 

431.  Intention  should  accompany;  Alterations  which  do  not  revoke..  540 

432.  Modern  Legislation  treats  Informal  Alterations  with  Disfavor..  542 

433.  The   Same  Subject:    Effect  of  Alteration,   etc.,   so   as  to   render 

Illegible 543 

434.  Probate  with  or  without  Interlineations,  etc 544 

435.  Presumption  as  to  Time  of  Alterations,  etc.;   Proof 545 

436.  Alteration  in  a  General  Sense  expressed  by  Codicil 546 

437.  Codicil  does  not  revoke  Will  except  so  far  as  Necessary 547 

438.  Later  Provisions,  Whether  by  Way  of  Substitution  or  Addition.  548 

439.  Whether  Revocation  of  the  Codicil  takes  Effect  upon  the  Will; 

and  Vice  Versa 549 

440     Misrecital  of  Will  in  Codicil;  their  Mutual  Comparison 551 

440a.  Probate   of    Codicils    551 

CHAPTER  III. 

REPUBLICATION  OF  WILLS. 

§  441.     Republication  defined;   Acts  Express  and  Impliel 553 

442,  443.     Express  Republication;    Statutes  requiring  Re-exc-cution  or 

a    Codicil,   etc 553,  554 

444.  Implied    Republication    556 

445.  The  Same  Svibject:    Oral   Instances   cited 557 


XXVl  TABLE  OF  CO^'TENTS  IN  VOLUME  I. 

Page 

§  446.     The  Same  Subject:  Oral  Revival  after  Revocation  by  Act  of  Law  558 

447.  Implied  Republication  by  Codicil  or  Writing 559 

448.  General  Effect  of  Codicil  in  reviving  what  was  imperfectly  ex- 

ecuted    561 

448a    Proof  of  Codicil,  as  Establishing  Proof  of  ^Yill 561 

449.  The  Same   Subject:    Former   Efficacy   of  Republishing   so   as   to 

dispose  of  After-acquired  Property 563 

450.  Republication  brings  down  Will  to  Date 564 


PART  V. 

WILLS   rPOX   VALUABLE    CONSIDERATION. 

CHAPTER  I. 

JOINT  AND  MUTUAL  WILLS. 

451.  Wills  are  Revocable,  because  of  the  Nature  of  the  Gift 565 

452.  But  a  Will  may  be  upon  Valuable  Consideration  and  Imperative.  566 
452a.  Will  admissible  to  Probate,  notwithstanding  Breach  of  Contract.  567 

453.  The  Rule  of  Valuable  Consideration  practically  applied;  Legacies 

as  Payment  for  Services,  etc 567 

453a.  Other  Instances  of  Valuable  Consideration 570 

454.  Contract  for  a  Certain  W^ill  specifically  enforced  in  Equity 571 

455.  Joint  or  Mutual  Wills   573 

456.  The  Same  Subject:  Joint  or  Mutual  Wills  as  to  Probate 574 

457.  The  Same  Subject:   Some  Cases  show  Reserve  and  attempt  Dis- 

tinctions       575 

458.  A   Will    jointly   executed   which   disposes   only   of   one   Person's 

Property  is  not  a  Joint  Will 577 

458a.  Right  to  revoke  a  Joint  or  Mutual  Will 577 

459.  Where  Probate  must  be  delayed  until  Both  or  All  Testators  die.  578 

460.  Joint  or   Mutual   Will   conditionally   expressed 579 


PART  VI. 

CONSTRUCTION   OF   WILLS. 
CHAPTER  I. 

f.ENEn.XL    RULrS    OF   TE.STAMENTARY    CONSTRUCTION. 

I  4»il.     Modern  Precedents  Many;  Deeds  and  Wills  Compared 580 

462,    463.     Rules     of     Te-taniontary     Construction     are     of     Limited 

Scope 581,  583 


TABLE  OF  CONTENTS  IX  VOLUME  I.  XXVll 

Page 

5  464.     Difficulty  of  applying  Rules  of  Interpretation 584 

465.  Construction  aided  or  unaided  by  Extrinsic  Evidence;  the  Latter 

here   considered    585 

466,  467.     Cardinal  Rule  that  Testator's  Intention  shall  prevail. .     586,  588 

468.  The  Whole  Will  must  be  taken  together 588 

469.  Language  taken  according  to  the  Testator's  Situation 590 

470.  Technical  Words;  how  far  controlled  by  Testator's  Intent 590 

471.  Technical    Words   not    Necessary;    Words   occurring   more    than 

once 592 

472.  Words  to  be  taken  in  Usual  Sense ;  Punctuation,  etc 592 

473.  Courts  give  Effect  if  Possible  to  All  Parts  of  a  Will 593 

474.  Later  Clause,  how  construed  With  an  Earlier  One 594 

474a.  Same  Words  in  a  Clause  applied  to  Different  Subjects  or  Objects.  595 

475.  General  Description,  whetlier  limited  by  Particulars 595 

476.  Regard  paid  to  the  Predominant  Idea  of  the  Will 595 

477.  Courts  will  change  or  mould  Language,  etc.,  so  as  to  give  Inten- 

tion Effect   596 

478.  Treatment  of  Repugnant  Parts 599 

479.  Favor  to  Heir  or  Next  of  Kin,  considered 601 

480.  481.     The  Same  Subject:    Favor  to  Children  and  Lineal  Descend- 

ants, etc 602,  604 

481a.  Favor  to  the  Surviving  Spouse 604 

482.  The  Same  Subject:    Deeper  Principle  favors  what  is  Just  and 

Natural 605 

483.  Devise  without  Words  of  Limitation;  Heir  as  against  Devisee..  606 

484.  The  Same  Subject;  "Estate,"  etc.;  Effect  of  a  Charge,  Gift  over, 

or  Trust   607 

485.  The  Same  Subject :    Modern  Statute  Rule  of  Construction 609 

486.  When  a  Will  takes  effect;  After-acquired  Property 609 

487.  Codicil  construed  with  the  Will 611 

488.  Some  Effect  should  be  given  to  a  Will 613 

488a.  Effect   of  Will;    whether   controlled  by  Change   of  Condition  of 

Estate 614 

489.  Presumption   of   Compliance   with   Law;    Legal  and   Illegal   Pro- 

visions, etc 614 

489a.  Presumption  against  a  Revocation 615 

490.  Presumption  against  Partial  Intestacy 615 

491.  By  what  Local  Law  Wills  are  interpreted 616 

492.  Summary:    Mr.  Jarman's  Rules  of  Construction 619 

492a.  Proceedings  to  obtain  Construction  of  Will 621 

CHAPTER  II. 

DETAILS    OF    TESTAMENTARY    CONSTRUCTIOX. 

§  493.     Details  to  be  considered;    as  to  the   Property   described   in   the 

Will ;    Modern   Legislation,   etc 622 

494.     Descriptions  relating  to  Real  Estate:    Leaseholds 622 


XXviii  TABLE    OF    CONTENTS    IN    VOLUME    I. 

Page 

§  495.     The  Same  Subject:   Trust  Estates  and  Mortgages 623 

496.  The  Same   Subject:     Reversionary  Interests,   etc 624 

497.  The  Same  Subject:    Lands  contracted  for 625 

498.  The  Same  Subject:    "Land";   Tenement";   "Hereditament"...  625 

499.  The  Same  Subject :    "  Messuage  " ;   "  Premises  " 626 

500.  The  Same  Subject:    "  House,"  "  Mill,"  etc 626 

501.  The  Same  Subject:    "Appurtenances  "  and  Similar  Expressions. .  628 

502.  Devise  of  a  "  Farm,"  "  Freehold,"  "  Home,"  etc 629 

503.  Devise  of  "Rents  and  Profits";   "Use  and  Occupation";   "In- 

come," etc 630 

504.  Descriptions  relating  to  Personal  Property;  "Mortgages";  "Se- 

curities for  Money,"  etc 631 

505.  The  Same  Subject:    Gift  of  "Money"  or  "  Moneys,"  "Cash,"  etc.  632 

506.  The  Same  Subject:    "  Movables  ";  "  Personal  Property  " 635 

507.  The  Same  Subject:    Gift  of  Interest,  Income,  or  Produce  of  Per- 

sonalty ;  Words  of  Inheritance 636 

508.  The  Same  Subject:    "Goods";   "Chattels" 637 

509.  Descriptions  relating  to  both  Realty  and  Personalty:  "Effects"; 

"  Possessions  " ;   "  Things  "   637 

510.  The  Same  Subject :    "  Estate  " ;   "  Property  "...-. 638 

511.  512.     The  Same  Subject:    Miscellaneous  Terms  of  Description     639,  640 

513.  Description  of  Gift;  Devise;  Legacy;  Bequest,  etc 641 

514,  515.     Description  of  Gift;   General  Terms  how  far  restrained  by 

particular  Enumeration    644,  647 

516.  A  False  Description  does  not  vitiate,  etc 648 

517.  But  Particulars  may  qualify  a  General  Description 649 

518.  Repugnant  Description;  Language  of  Will  not  to  be  subverted..  650 
518a.  Real  E.state  with  the  Personalty  thereon 651 

519.  Residuary  Bequest  of  Personalty;   its  Effect 652 

520.  The  Same  Subject:    General  Bequest  of  a  Particular  Residue 654 

521.  Residuary  or  General  Devise,  and  its  Effect 655 

522.  Devise  of  Residue,  etc. ;  Residuary  Clause 656 

523.  Residuary  Bequest  or  Devise  as  to  Intermediate  Income 658 

524.  Residuary  Bequest  or  Devise  as  to  Gift  of  Proceeds  of  Sale,  of 

Reversionary   Interests,   etc 660 

525.  526.     Devises  and  Bequests  in  Execution  of  Powers 661,  662 

627.     Correction  of  Errors  in  describing  Property 663 

528.     Object  of  Gift  next  to  be  considered 663 

529-532.     Gift  to  Children,  etc.,  as  a  Class,  how  treated 664,  666,  667,  669 

532a.  The  Same  Subject :    Incidents  of  Gift  to  a  Class 670 

533,   534.     Words    describing    Object    of    Gift;    "Children,"    "Grand- 
children " 670,  672 

535.     "  Issue,"  "  Descendants,"  etc.,  as  Objects  of  a  Gift 676 

535a.  Surviving  SfK)uso  as  Object  of  Gift 677 

636.  Cxtljiiteral  Relatives  as  Objects  of  a  Gift 677 

637.  "  Relntifins,"  "  Family,"  etc.,  as  the  Objects  of  a  Gift 679 

637a.  "  I'.eneficiarieH  "  as  ttie  Objects  of  a  Gift 682 

638-541.     Taking  p.r  Capita  or  jkt  Stirpes 683,  684,  685,  688 


TABLE  OF  CONTENTS  IN  VOLUME  I.  XXIX 

Page 
542,  543.     "Heirs"  and  "Next  to  Kin,"  as  used  in  Bequest 689,  692 

544.  "  Representatives,"  "  Executors  and  Administrators,"  etc.,  as  used 

in  Bequests   694 

545,  446.     Heir  how  far  favored  when  Realty  is  undisposed  of .  .  . .     696,  698 
547,  548.     Meaning  of  "  Heirs  "  as  applied  to  Real  Estate";  or  where  Real 

and  Personal  are  blended 698,  700 

649.    Devise  of  Lands,  Estate,  etc.,  in  Fee 701 

550.     Words  "Estate,"  "Property,"   "Residue,"   "Remainder" 704 

651,  552.     Customary  Heir;  Heirs  Male  of  the  Body,  etc 705,  706 

553.  Estate  Tail  in  a  Devise;   "Heirs";   Shelley's  Case 707 

553a.  The  Same  Subject:    Limitation  and  Purcliase 710 

554.  The  Same  Subject:    "  Issue  " 711 

555.  The  Same  Subject :    "  Children,"  etc 712 

556.  The    Same    Subject:     Estates    Tail    not    favored    in    the    United 

States 713 

657,  558.    Bequests  of  Personalty;  whether  Absolute  or  for  Life..     714,  715 

559.  Devise  or  Bequest ;  whether  Absolute  or  not 716 

560.  Life  Estate  and  Remainder  in  Gifts;  Executory  Devise 718 

561.  Devise  or  Bequest  by  Implication 721 

662.  Gift  in  General,  whether  Vested  or  Contingent  in  Interest 723 

562a.  Vested  Estates  Defeasible,   etc 727 

663.  Beneficiaries :    when    ascertained 728 

664.  The  Same  Subject:    "  Dying  without  Issue,"  etc 731 

564a.  Prolonged  Restraint  upon  Alienation  not  favored 733 

665.  Substitution,   Survivorship,   etc 733 

565a.  Power  of  Disposition  by  first  Beneficiary 736 

566.  Interest,  whether  by  Way  of  Joint  Tenancy  or  Co-Tenancy;  Hus- 

band and  Wif t  j  etc 737 

566a.  Gifts  to  Servants,  Strangers,  etc.;  Miscellaneous  Points. 739 

CHAPTER  III. 

EXTBINSIC    EVIDENCE    TO    AID    CONSTRUCTION. 

567.  Admission   of   Extrinsic   Evidence   in   General;    Rule   applied   to 

Wills 741 

568.  569.     Extrinsic  Evidence  to  control,  contradict,  etc.,  Inadmissible 

742,  744 
670.     Parol  Evidence  Inadmissible  to  change  Rules  of  Construction,  etc.     746 

571.  Meaning  of  Words  interpreted  by  Will;  Punctuation,  etc 747 

572.  Extrinsic  Evidence,  how  far  Admissible  to  resolve  what  is  Doubt- 

ful      748 

573.  574.     Extrinsic  Evidence  in  Aid  of  an  Equivocal  Descriptibn. .     749,  750 
675.     The  Same  Subject:    Late  English  and  American  Cases  compared..   752 

576.  Conclusion  as  to  Extrinsic  Proof  of  Intent  in  Case  of  Doubtful 

Description 755 

577.  Reference  to  Context  in  Equivocal  Description 755 

578.  Extrinsic  Proof  cannot  aid  to  misconstrue 756 


■yyy  TABLE  OF   CONTENTS  IN   VOLUME  I. 

Page 

§  579,  580.     Extrinsic  Proof  of  Facts  and  Circumstances,  not  of  Intention, 

how  far  Admissible 758,  760 

581.  Latent  and  Patent  Ambiguities  in  this  Connection 762 

582.  Extrinsic  Proof  of  Custom  and  Usage;  Deciphering,  Translating, 

etc 763 

583.  Misnomer,  Nickname,  etc.,  corrected;   Subject  or  Object  of  Gift, 

Executor,  etc.,  identified 764 

584.  Blank  in  a  Will :    Omitted  Gift  not  inserted 767 

585.  Devise  or  Bequest  to  Children,  Wife,  etc 768 

586.  Parol  Evidence  to  prove  or  repel  a  Resulting  Trust 769 

587.  Effect  of  Language  in  Will  not  to  be  varied 770 

588.  General   Summary;    Faikire   of   Gift   Notwithstanding   Extrinsic 

Evidence 770 

589.  General  Summary;  Extrinsic  Evidence  always  Admissible  to  aid 

in   Right    Interpretation 772 

590.  Sir  James  Wigram's  Propositions  stated 772 

CHAPTER  IV. 

MISCELLAXEOUS     PROVISIONS     CONSIDERED. 

§  591.     Gifts   sufficiently  or  insufficiently  Certain 774 

592-594.    Uncertainty  in  Subject  or  Object 775,  777,  779,  780 

595.  Uncertainty  in  creating  a  Trust;  Precatory  Trusts 781 

596.  Uncertainty  in  creating  a  Trust;  Gift  for  Specified  Purpose 786 

597.  The  Same  Subject:    General  Conclusion 788 

598-600.     Testamentary  Gifts  upon  Condition  Precedent  or  Subsequent 

789,  791,  794 
601,  602.     Special  Conditions  considered;  Restrictions  upon  Alienation, 

etc ...797,  799 

603.  Conditions  in  Restraint  of  Marriage 802 

604.  Condition   as   to   Residence,   assuming   Name,    maintaining   Good 

Character,  etc 806 

605.  Condition  not  to  dispute  the  Will,  etc 808 

605a.  The  Same  Subject:    Bond  to  abide  by  Provisions  of  Will,  etc...  811 
(tOi't.     Conditions     against     Baiikrujjtcy     or     Insolvency;     Spendthrift, 

Trusts,  etc 811 

C07.     Limitation,  etc.,  distinguished   from  Condition 814 

608,  609.     Rights  and  Duties  of  Testamentary  Trustees 814,  816 

610.  Trusts  which  are  Invalid  or  liable  to  be  set  aside,  etc 818 

611.  Executors  holding  in  Trust,  etc 819 

APPENDIX. 

A.  LKAnrxr,  Wills  Acts,  Enoi.isii  and  American 821 

B.  FoBMH   OK   Wills 835 

C.  ,*>ITGGE8TI0NS    TO   PERSONS    MAKINO    THEIR    Wn.LS 842 


Index 847 


TABLE  OF  CASES. 


See  Axso  'Jable  of  Cases  i?i  Vol.  2. 


(References  are  to  sections.    Many  cases  are  cited  in  this  volume  without  tlio  name.) 


A. 

Abbott  V.   Abbott 

V.  Bradstreet 

V.  Lewis    535,  56Ga, 

Abney   v.   Miller 

Abraham  v.  Wilkins 303,  306, 

Abrey   v.   Newman 

Acherly  v.  Vernon 447,  487, 

Ackerman  v.  Fichter 

Ackers  v.   Phipps.  .  . '. 

Ackroyd    v.    Smithson 

Adair  v.  Adair 

V.   Craig    

Adams  v.  Adams 540,   561, 

V.  Field    312, 

V.  Massey 

Adams  v.  Methodist  Church.  185, 

V.   Norria 259, 

Goods  of   

Addeman  v.   Rice 

Addington  v.  Wilson 

Addy  V.  Grix 

Aikin  v.  Weckerly.  .  .      174,  176, 

Ainsworth.  Goods  of 

Alcer's   Will    

Albrecht  v.   Pell 

Alchin's    Trusts    

Alder  v.  Beall   

Alexander  v.  Beadle 177, 

Aldrich  v.  Aldrieh 240,  274, 

y.  Gaskill    502, 

Alford  V.  Earle  

V.  Johnson    

Allardice  v.  Allardice 

Allen  V.  Allen 353,  458, 

V.  Bowen 


Sec. 
348 
503 
573 
445 
323 
541 
41)7 
21a 
523 
545 
245 
26S 
605 
325 
478 
246 
365 
258 
520 
168 
327 
342 
311 
335 
57 
593 
540 
1T8 
422 
516 
444 
237a 
456 
539 
518 


Sec. 

Allen   V.   Bromberg 454 

V.  Craft   602 

V.  Griffin  .    ...174,  322,  324,  328 

V.  Hunt 565a 

V.  Jackson 603 

V.  Little 57 

V.  Lyons    575 

V.  :Maddock 282 

V.  ]\[arkle    535 

V.  M'Pherson    .    ...219,   223,  248 

V.  School  Fund    564 

V.  White 475,  514 

Allen's  Appeal   513 

Allen's  Will    329,  342 

Allison  V.  Allison 265,  324 

325,  329,  384,  472 

Alpaugh's  Will    323,  325,  347 

Alsop  V.  Alsop 489,  490 

Alsop   V.   McArthur 56 

Alston   V.    Davis 255 

Alter's  Appeal   62,  215,  460 

Ambre  v.   Weishaar 342 

American   Bible  vSociety  v.   Mar- 
shall    24 

V.  Price   140,  159,  161.  201 

Ames,  Re   195,  207 

Ames'    Will,    Re 195 

Amory   v.    Fellowes S51 

V.  Meredith 526 

Anderson  v.  C«.ry   602 

Anding  v.  Davis    454 

Andress  v.  Weller.  .126.  127.  191,  218 

Andrews  v.  Bruuilicld 526 

V.  Emmot 525 

V.  Lincoln   489 

V.  Partington ' 531 


(xxxi) 


JIXXll 


TABLE  or  CASES  IX  VOL.  I. 


See  also   Table  of   Cases   in    Volume   II. 


iSkC. 

Andrews  y.  Rice 489,  5G5 

V.  Schoppe 475,  494,  514 

Andrews,  Re 118,  207,  239 

Andrews'    Will    312 

Angell  V.  Angell 551 

Angus  V.  Xoble 595 

Anstee  v.  Xelms 583 

Anstee'3  Goods 311 

Anstey  v.  Dowsing 351 

Anstice  v.   Brown 34 

Anstruther  v.  Chalmer 491 

Anthony  v.  Anthony 21 

Appel    V.    Bycrs 481,  534 

Apperson  v.  Dowdy 402 

Applebec,  Goods  of 398 

Appleby  v.  Brock 198,  201,  203 

Apploton  V.  Rowley 544 

Apreece  v.  Apreece 596 

Archambault's   Estate    492a 

Archer  v.  Deneale 510,  550 

V.  Jacobs 532 

V.  Mosse 223 

Goods  of   322 

Archer's   Caae    552 

Arcularies  v.   Swctt 571 

Arendt  v.  Arondt 264 

Armant's  Will   312 

Armitiifje    v.    Williams 531 

Armhtroiig  v.  Amistrong.  .  .  .237,  268 

27.],  274,  312,  454,  487 

V.   IIuddle8tf)ne 229 

Arnault  v.  Arnault 22,  230 

Arndt  v.   Arndt .309 

Arn»'«on's    Will    343 

Arnett    v.    Arni-tt 374 

Arnold  v.   Aldcn 554 

V.  Arnold 20,  514 

V.   Brown    .W4 

V.  <^'hii[)man    524 

V.   Earlf 42 

Arnold's    Kntato    223,  .509 

Arrow   v.   .MclliHh 541 

Arrow*mith'K  TruHt    437 

Arthur,  G'kkIh  of .'ill 

A«hmorc,  (iooiU  of 331.  .■{.'{2 

Anhton's    Estate    542 


Sec. 

Asbworth  v.   Carleton 365 

V.  Outram 52 

Aspy    V.    Lewis 480 

Asten  V.  Asten 583 

Astor,   Goods   of 281 

Atcheston  v.  Atchcston 566 

Atherton  v.  Crowther 539,  544 

Atkins  V.  Kron 522 

V.  Sanger    195 

Atkinson   v.   Morris 403 

Atlee  V.  Hook 53 

Attorney-General  v.  Jones 265 

V.   Parntlier    109 

Attree  v.  Attree 511 

Atwood  V.  Alford 596 

V.  Geiger 540 

V.  Weems 28,  497 

Aubert  v.   Aubert 67 

Aubert's  Appeal    423a 

Aulick  V.  Wallace 477 

Aumack   v.    Jackson 242,  249 

Aurand  v.  Wilt 268,  342 

Austen  t.  Gr.iliam 151 

Austen   v.   Kuehn 454 

Austen's  Goods   367 

Austin   V.   Austin 213a 

V.  Davis 454 

Avaro  v.  Avaro 329,  342,  346 

iiveling  V.  Association 512 

Avery  v.  Pixlcy 309,  393 

Axford,   Re    98,  317 

Aj-res  V.  Ay  res 84.  160,  320,  342 

Ayroy  v.   Hill 124,  127 

Ayton  v.  Ayton 530 

B. 

Baaeke  v.  Baacko 426,  427 

Baff  v.  Harrison 266 

Baddelcy   v.   Baddolcy 52 

Bagot,   Re    477,  490 

Bailey  v.  Bailey 8,  252.  296,  418 

Bailey,  Goods  of 120,  308 

V.  Hoppin   28 

v.  Pattor.son   563 

Ifailey,    Ro    407 

Main   v.   Lcscher 529 


TABLE    OF    CASES    IN    VOL.    I. 


XXMlll 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Bainbridge  v.  Bainbridge 505 

Baird    v.    Baird 371,  373 

V.  Boucher 527,  576 

Baker  v.  Baker  126,  174 

193,  312,  512,  535 

V.  Batt 77 

V.  Dening   303 

V.  Farmer 520 

V.  Lewis 188 

V.  Pender 477 

Baker's  Appeal 281,  348,  519,  570 

Baker's  Will    248 

Balcorn   v.   Haynes 539 

Baldwin    v.    Baldwin 342 

V.  Barber    281 

V.  Parker  ....174,  229,  239,  240 

V.  Rogers 529,  530 

V.  Spriggs    426 

Ballard  v.  Carter 427 

Ballantine  v.   Foster 541 

Bank  v.  Billings 562 

Banks  v.   Goodfellow 67,  68,  74 

136,  156,  158,  159,  165,  188,  190 

Banks  v.  Howard 453 

Banks  v.  Sherrod 43 

Bannatyne  v.  Bannatyne 81,  91 

92,  112 

Banzer  v.  Banzer   478 

Baptist  Church  v.  Robarts.  .393,  401 

Baptist  Convention  v.  Ladd....  213a 

Barber's  Appeal   174,  185 

Barber   v.   Bai-ber 268,  297 

Barber,  Ex  parte 504 

Barber  v.  Pittsburg,  etc.,  R.....  542 

Barclay  v.  IVIaskelyne 410 

Barden's  Goods   295 

Ball's  Estate   16a,     227,  236 

Baltimore  v.  Williams 265 

Bancroft  v.   Ives 20,  426 

Barker  v.  Barker 529 

V.  Bell   442 

V.  Comins 199,  218 

V.  Greenwood    609 

Barker's   Goods    270,  273 

Barkley  v.   Cemetery  Ass'n 240 

Barlow  v.  Bateman 604 


Sec. 

Barnaby  v.  Tassell 514 

Barnes  v.  Barnes 347 

V.  (  rowe    447 

v.  Patch 510,  537 

V.  Rowley 59G 

V.  Vincent 64 

Barnes'   Will    394 

Barnesly  v.   Powel 223 

Barnett  v.   Barnett   461,  565a 

V.  Blake    602 

Barnewell  v.  Murrell   ..284,  298,  326 

Barney    v.    Arnolds 602 

Barney's   Will    240 

Barnhizel    v.    Ferrell 534 

Barraelough  v.  Greenhough 223 

Barrett  v.   Buxton 126 

V.  Garden 606 

Barrington   v.    Tristram 534 

Barry  v.  Butlin 170,   173.  179 

245.  247 

Barstow  v.   Goodwin 535 

Bartholomew  v.  Henley 265,  438 

Barton's  Estate   267,  288 

Barton   v.    Collingwood 287 

V.  Tuttle 548 

Basket  v.  Hassell 271 

Baskin  v.  Baskin 325,  326,  346 

Bassett's  Estate,  Re 511,  5r2 

Bateman  v.  Pennington 258,  267 

Bateman's  Trust,  Re 33 

V.  Hacking  . 415,  421 

V.  Kingsley 514 

Battle  V.  Speight 11 

Batton  V.  Watson 250,  384,  385 

Bauman    v.    Russian 454 

Bauskett  v.  Keitt 402 

Baxter  v.  Abbott 174,   175,  l;-0 

192,  199,  204,  205,  206 

V.  Bo-nyer 478 

Baxter's   Goods    294 

Beadles    v.    Alexander 348 

Beales  v.  Crisford 505 

V.  Storm   56 

Beall    V.    Cunningham 195,  281 

448.  487 

V.  Mann    247 


XXXIT 


TABLE  OF  CASES  IX  VOL.  I. 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 


Beall  V.  Schley 605 

V.  Wilson 492a,  002 

Bean  v.  Bean 1C2 

Bear  v.  Bear 516 

Beard,  Re 604 

Beardsley   v.   Faireliild 542 

Beatty   v.    Clegg 402 

V.  Lalor 50.5 

V.  Eichardson 22 

y.  Universalist  Society    ....  583 

V.  Western  College 210 

Beaty  v.  Beaty 266 

Beaubien  v.  Ciotte..l75,  198,  201,  203 

208,  209,  236,  240,  242,  243 

Beanclerk  v.  Dormer 564 

Beaumont  v.  Fel 574,  575,  580 

V.  Keim 415 

Beaumont's  Estate   268 

Beckett  v.  Harden 437 

V.  Howe 321 

Beckett,  Re  326,  515 

Beck's   Estate    24 

Bectine  v.   Hodgson 523 

Bedell    v.    Clark 491 

Bedford    v.    Bedford 417,  549 

Beebe,  Re    275 

Bekman    v.   Bonsor 21,  519 

Beemer  v.  Beemer 70,  118,     185 

242,  497 

Belirons  v.  Behrens 402 

Beirnc    v.    Beirne 524 

Bolasjrse  v.   Lucan 502 

Belgard  v.  Girtor 27 A 

Belknap   v.  Tillotson 453a 

Bell  V.   Fothergill 401 

V.  McMaster 203 

V.  Smallfv    566 

"Bnllairfi   v.    B.llairs 003 

Belt   V.    Lazenhy 454 

Belton  V.  Simimpr 42<i 

Bender  v.  I>eitripk 479 

BenKonpfh  v.   Kd ridge 21 

Benjamin's    Will    70,     116 

Benner's   Will    465.  562,     570 

Bennett    v.    Haelielnr 511 

V,  Bennett  .   ..240,  245,  409,     477) 


Sec. 

Bennett  v.  Bittlc 500 

V.  Jackson 373 

V.  Marshall 577 

V.  Sherrod 387,  401 

Benoist  v.  Murrin 07,  83,  144- 

159,  160 
Bensberg  v.  Washington  Univer- 
sity   77,  141,  174 

Benson  v.  Benson 384 

V.  Corbin    564 

Benison's    Estate    427,  56G 

Bent's  Appeal    249 

Bentley   v.   Kaufman 558 

Benton   v.    Benton 514 

V.  Scott 195 

Berberet  v.  Berberet  .  .  .239,  346,  364 

Bergdorf s    Will    16a 

Bernal   v.    Bernal 551 

Bernsee's  Will   34S 

Berry  v.  Berry    533 

V.  Trust  Co 68,  192 

Besancon   v.    Brownson 405 

Best  V.  Berry  570 

V.  Best 127 

Bethel  v.  Moore    393 

Bettison   v.    Bromley 354 

Betts  V.  Harper 457,  459 

Bevelot  v.   Lestrade 71 

Beaver  v.  Spangler.  .78,  140,  276,  192 

193,  206 

Bconsee's  Will    348,  349 

Bibb  V.  Thomson 390,  395 

Bibbens   v.   Potter 592 

Bice  V.  Hall 198 

Biddulph  V.  Hole 4-10 

V.  Meakin   499 

Bigelow  V.  Gillott 397,  430 

Bilke  V.  Roper 59 

Billiiii,r!iurst    v.    Vickors 250 

Hillings'   Appeal    209 

Bills  V.  Bills   595 

V.  Putman    488a 

Bingliam  v.  Isham 377 

Bioren  v.  Ncslcr 326 

Birch   V.   Birch 435 


TABLE    OF    CASES    IN    VOL.    I. 


XXXV 


See  also  Table  of  Cases  In  Volume  II. 


Sec. 

Bird  V.  Bird 134,  136,  239 

V.  Pope    454 

Birdsall  v.  Hewlett    562 

Birdseye,  Re 246 

Birks    V.   13irks 384,   385,  411 

Birks,   Re    535 

Bishop  V.   Bishop 11 

V.  McClelland 490,  561 

V.  Wall 52 

Bizzey  v.   Flight 281 

Black  V.   Ellis 191 

V.  Herring    595 

V.  Hill   575 

V.  Richards  518,  574,  583 

V.  Shreeve 277 

Blackborn   v.   Edgley 500 

Blackburn,  Re   299 

Blackett  v.  Ziegler 397,  415,  442 

BLicklry  v.  Webb 540 

Blackman   v.   Andrews 77,  185 

Blackmer   v.    Blackmer 513 

Blacksher  Co.  v.  Northrup 491 

Blackwell  v.  Bull 537 

Blackwood  v.  Darner 216 

Blagge  V.  Miles 467,  480,  526 

Blagrave  v.  Blagrave 609 

Blaine  v.  Chamber 500 

Blair  v.   Scribner 582 

Blaisdell   v.   Hight 509 

Blake  v.  HaMkins 466,  526,  579 

V.  Ronrke    116 

V.  Stone    553 

Blake's  Trusts 561 

Blakeman  v.  Sears 409 

Blakemore's   Succession 401,  427 

Blakey  v.  Bl-xkey.  .  195,  227,  229.  244 

Blakely's  Will 159,  163,  193 

Blanchard  v.  Blanchard.386,  394,  395 

V.  Nestle 230 

Bland  v.  Bland 470 

V.  Lamb 519 

V.  Bell   503 

Bleckley,  Goods  of 439 

Bledsoe  v.   Bledsoe 229 

Bleecker  v.  Lynoli..l32,  136,  137,  230 

Bless  V.  Blizzard 453 


Sec. 

Blewitt,    Re 434 

V.   Roberts    507 

Blodgett  V.  Moore 424 

Blood's  Estate 201 

Bloodgood  V.  Lewis 397,  468 

Blough  V.  Parry 170 

Blouin  V.  Phaneuf 512 

Blue   V.   Patterson 223 

Boardman   v.   Woodman 159,  162 

174,  175,  180,  184,  200,  211 

Bobb's  Succession 406 

Boehm's  Goods 219 

Boell   V.   Schwartz 218 

Bogan  V.  Swearingen 272 

Bogart,  Re    327 

Bohanon  v.  Walcott 415 

Bohleber   v.   Rebstock 386,  387 

]  'ohlcr  V.  Hicks 162,  229 

Boldney   v.   Parris 342 

Boling  V.  Boling 265 

Bolles  V.  Harris 375,  376,  377 

Bolman  v.  Overall 454 

Bolton    V.    Bank 562 

Bolton,  Re    22 

Bond,  Re   595 

V.  Seawell 337 

Eoning's    Estate 610 

Boofter  v.  Rogers 268,  378 

Bool  V.  Mix 483 

Booth   V.   Kitchen 239,  243 

Bootle,  Goods  of 295 

Borden  v.  Borden 397,  430 

Born  V.  Hortsman 604 

Bosley  v.  Bosley.  .  .427,  463,  485,  546 

Boston  Co.  V.  Coffin 490 

Bosworth  V.  Stockbridge 562 

Botsford  V.  Krake 367,  378 

Bott  V.  Wood 348 

Boughton  V.  Knight 67,  77,  83 

147,  149,  156,  158,  165 

Boulevard,  Re   478 

Bourke  v.  Wilson 326 

Bowen  v.  Allen 5I8 

V,   Johnson    427 

V.  Payton 503 

Bower  v.  Bower 193 

V.  Daniel   62 


XXXTl 


TABLE  OF  CASES  IX  VOL.  I. 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Bowerman  v.  Sessel 554 

Bowers  v.  Porter 542 

Bowes  V.  Bowes 447,  487 

Bowes,   Re    570 

Bowman,   Re    565 

Boyce  v.  Boyce 599 

Boyd  v.  Cook 98,  318,  395 

'  V.   Ely 74,   159,  187 

V.  Latham 490 

Boyd  V.  McConnell 350,  354 

V.  Strahan 559 

Boydell  v.  Golightly 563 

Boyes  v.  Cook 526 

Boyle  V.  Boyle 403 

Boylan  v.  Meeker 193,  241,  405 

Eoyles  v.   Wagiier 553 

Boys  V.  Morgan 520 

Boyse  v.  Rossborough 68,  227,  228 

231,  232,  236,  239 

Brackey   v.   Brackey 242 

Braddock,  Goods  of 335,  336 

Bradford  v.  Blossom.  . .  .185,  186,  242 

V.   Bradford    605 

Bradhurst   v.   Field 417 

V.   Foley    562 

Bradisli   v.   Gibbs 54 

V.  McClellan  416 

Bradlee    v.   Andrews 537 

Bradley  v.  Bradley 223 

V.   Cartwright    554 

V.  Gibbs  437 

V.  Westcott    558 

Brady  v.  Cubit 426,  446 

V.  McCro.sson   297 

]}raliam   v.   IJuPclioll 445,  448 

Brainard    v.    Brainard 89a,  186 

Braint'rd   v.   Cowdrcy 579 

Bran<!,  He   385 

Brandt-'H  v,  Brandes 454 

Brandon   v.   Robinson 606 

Brant   v.  Virginia  Coal  Co 559 

V.  WiJHon   407,  437 

Branton   v.   Hiicklfy 532a,  530 

BraHJier  v.  Marnh 595 

BraHHington'H  (UhMh   385,  396 

Brattlf  Sfpiarc  Clinrph  v.  Grant.  524 

Brawlf-v    V.    ColIinH 510 


Braybroke  v.  Inskid 

Brearley   v.   Brearley.  .  .482,   578, 

Breastwitt  v.  Wbittaker 

Breatwitt  v.  Whittaker 

Breaux  v.  Gullusseaux 

Breed  v.  Pratt 81, 

Brengle  v.  Tucker. 301,  320,  329, 

Brent  v.  Washington 

Brett  V.  Brett 

V.  Horton   

Brewer  v.  Baxtor 

Brewster,  Re   

Bridge  v.  Abbot 

Bridwell  v.  Swank 

Briggs  V.  Caldwell 

Brigham  v.    Shattuck 

V.   Winchester    

Brimmer  v.   Sohier 486, 

Brinckerhoff  v.  Remsen 

Brinkman  v.  Rueggesick.  .67,  72, 

Brinton's  Estate   

Bristed   v.    Weeks 188, 

British  Museum  v.  Wliite 

Broach  v.  Sing 

Broadhead  v.  Wiltse 

Broadus  v.  Rossen 

Broadway  Nat  Bank  v.  Adams. 

Brock  V.  Luckett 110,   117, 

Broderick's  Will   

Brogden  v.   Brown. 77,   111,   114, 

Brokaw  v.  Hudson 

Brook  V.  Chappell 

V.  Turner   

Brooke  v.   Brooke 52, 

V.  Kent   

V.  Townshend.184,  198,  201, 

V.    Turner    505, 

Brooks  V.  Barrett.  175,  184,  186, 

V.    Woodson    

Brook's  Estate 201, 

ISrooinc  v.  Monck   

l^rotliorton   v.   TTollier 

Brot/.man's  Appeal  


Sec. 
495 
589 
458 
454 
259 
246 
330 
563 
318 
540 
268 
392 
544 
24(5 
603 
524 

29 
487 
347 
174 
161 
246 
321 
373 
210 
289 
602 
606 
119 
223 
122 
189 
544 
379 

48 

53 
433 
203 
508 
198 
328 
240 

28 
445 
603 


TABLE    OF    CASES    IX    VOL.    I. 


XXXVli 


See  also  Table  of  Cases  in  Volume  II. 


ISec. 

Brough  V.  Parry 213a 

Brough,  Re  437 

Broughton,   Re    606 

Brounker  v.  Brounker 250 

Brower   v.   Fisher 94,  95 

Brown,  V.   Avery 267,  278 

V.  Bartlett    466 

V.  Beaver    256 

V.  Betts    10 

v.  Boyd     496 

V.  Brown    397,    431 

V.  Brown. 374,  402,  412,  414,  570 

575 

V.  Clark. 281,  329,  347,  424,  443 

446,  447 

V.  Cogswell    510 

V.  Higgs     519,  561 

V.  Mitchell    201,  239 

V.  Moore    195,  231 

T.  Riggen...68,  73,  76,  118,  186 

204,  209 

V.  Saltonshall     500,  568 

V.  Selwin    568 

V.  Shand     265 

V.  Taylor    513 

V.  Thorndike.398,   408,   417,  420 

421,  466 

V.  Tuschoff    474a,  570 

V.  Ward     159,  168 

V.  Webster    61,  459 

Brown,  Ex  parte 430 

Brown,   Re 407,   495,   532,  562 

Brown's  Will   397 

Brownell  v.  DeWoIf 407,  437,  449 

Brozby's  Appeal   563 

Bruce  v,  Sieria 422 

Brunk  v.  Brunk 603 

Brunson  v.   King 263 

Brunt   V.    Brunt 38  4 

Brush  V.  Wilkins 425 

Bryan  v.   Barnard 255 

V.  Bigelow   282,  570 

Bryan  v.   White 346 

Bryan's  Estate    406 

Bryant  v.   Pierce 243 

Bryce,  Goods  o*   310 


Buchanan  v.   Lloyd 407 

V.  Pierie    168 

v.  Turner     54,  57 

Buckell  V.  Blenthorne 51 

Buckle  V.  Buckle 318 

V.   Fawcett    565 

Buckley  v.  Gerard   585 

Buckman's  Will.78,  137,  141,  185  227 

Budd's  Estate   24 

Budlong's  Will   241 

Bulger  V.  Ross 229 

Bull's  Will 491 

Bullock  V.  Downes 543,  563,  568 

V.    Seymour    564 

Bundrick   v.    Haygood 373,  375 

Bundy  v.  McKnight 70,   329,  342 

Bunyard  v.  McElroy 243 

Burbank  v.  Whitney 24 

Burden's  Estate    406 

Burdett  v.  Hopegood 25 

Burdine  v.  Burdine 453 

Burford  v.  Burf ord 304 

Burge   v.   Hamilton 434 

Burger   v.   Hill 60 

Surges  v.  Thompson 553 

Burgess  v.  Burgess 437,  453 

V.  Vinicome   357 

Burgoyne  v.  Showier 401 

Burke  v.  Anis 484 

Burkhart  v.   Gladish 161 

Burke  v.  Burke 299b,  562 

Burke's  Estate    452a 

Burley  v.  McGough 207 

Burls  V.  Burls 402 

Burney   v.   Allen 329,  342 

Burnham  v.  Burnham 604 

V.  Comfort   427 

Burns  v.  Burns    384,  402 

V.    Travis    422 

V.   Travis    423 

Burnside's  Succession    520 

Burritt  v.   Silliman 354 

Burroughs  v.   Jameson 468 

V.  Xutting   40 

Burrows,   Re    530 

Burrows  v.  Burrows.  ..  120,   173,  168 


SXXVlll 


TABLE  OF  CASES  IN  VOL.  I. 


See  also  Table  of  Cases  in  Volume  II. 


Hue. 

Burt  V.  Herron 595 

Burtenshaw  v.  Gilbert 384,  398 

Burton  v.  Holley 54,  57,  60 

V.  Newberry     447 

V.  Powers     484 

V.  White     484 

Burnwell  v.  Mandeville 470 

Bush  V.  Bush 243,  244 

V.  Delano    242 

V.  Lisle   126 

V.  McFarland    339 

Bushby  v.  Xewhall 522 

Bushnell's  Goods    218,  219 

Butler  V.  Benson 305 

V.  Gray     561 

V.  Little    483 

V.  Stratton    538,  540 

Butler's  Will 141 

Butterfield  v.  Haskins 532 

Buzbey's   Appeal    563 

Byers  v.  Hoppe...256,  264,  205,  267 

348 

Bynum   v.    Bynum 342 


Cadell  V.  Wilcocks 

Cadmus  v.  Oakley 

Cain  V.  Moon 

Caldecott  v.  Johnson 

Caldwell  v.  Renfrew 57,  60 

V.  Willis   

Calkins  v.  Calkins 

Callow  V.  Callow 

Calvin  v.  Fraser 

Cambridge  v.  Rous 

Camp  V.  Stark 262, 

Camp's  Estato  

Campbell  v.  Caiii|»bcll .  .  .  .68,  80, 

365, 

V.  Cnrniiban     

V.    FoHt'T     

V.   FptkIi IHt.   417. 

y.    1 1 i  1 1  f 1 1 1 1  

V.    i'r.-r.  tt     

V.   Hfiw'bii .  .548, 


406 
348 
271 
525 

477 
34l' 
504 
402 
5111 
353 
256 
218 
566 
242 
(Kir. 
427!i 
486 

563 


Sec. 

Campbell's  Trusts    540 

Campbell's   Will    116,  239 

Canada's  Appeal..  193,  243,  323,  324 

Candy  v.  Campbell 564 

Canedy   v.   Haskins 552 

Canfield   v.   Bostwick 486,  508 

Cannary  v.  Apperson 557,  603 

Capehart  v.  Burrus 512 

Card  V.  Grinman 402 

Carew,  Re    006 

Carey  v.   Baughn 443,  445,  440 

V.  Dennis   265,  266 

Carey,   Re    424,  446 

Carle   v.    Miles 456 

V.  Underbill 263 

Carlton  v.  Carlton 352 

Carmichael   v.   Carmichael 605 

Carnagy  v.  Woodcock 512 

Carne  v.   Roche 547,  548 

Carney  v.  Kain 486,  490 

Carpenter  v.  Hatch 242,  244,  245 

V.    Bailey    162 

Carr  v.   Estill 557 

Carr  v.  Smith 562 

Carr's  Estate 605 

Carroll  v.  Bonham 369,  371 

V.  Carroll   II 

Carter  v.  Dixon 163,  245 

V.  Long   610 

V.  Lowell    540 

V.  State     210 

Carter,  Re 495,  504 

Cartwright  v.  Cartwright.78,  79,  110 

112,   113,   187,   188,  189 

Gary  v.  Abbott 21 

Casement  v.  Fulton 321,  327,  345 

Cash  V.  Dennis 245 

Cash  V.  Lust 68,   137,  140 

Casmore,  Goods  of 311 

Casson  v.  Dade 341 

Castens   v.    Murray 422 

Sastlo  V.   Torre 216,  266 

Castleberry  v.  Stringer 542 

Castner's    Appeal   533 

Gates  V.   Gates 272 


TABLE    OF    CASES    IX    VOL.    I. 


XXXIX 


See  also  Table  of  Cases  in  Volume  IL 


Sec 

Catholic  Assoc,  v.   Firnane 20 

Catholic  University  v.  O'Brien . .  68 

Caton  V.  Caton   454 

Catrall,  Goods  of 315 

Cavarly's    Estate    532 

Caven  v.  Agnew 242,  246 

Cavenaugh  v.  Ainchbacker 57 

Cavett's  Appeal    304 

Caw  V.  Robertson 599 

Cawthron,  Goods  of 287 

Central  Trust  Co.  V.  Skillin 481 

Chaddick  v.  Haley 251a 

Chaffee  v.  Maker 562 

Chaffee  v.  Baptist  Convention . .  346 

Chamberlain  v.  Ervings 484 

Chamber layne  v.  Chamber layne.  551 

Chambers  v.  McDaniel 281 

v.  Minchin    568 

V.  Queen's  Procter    112,  120 

V.  Taylor    552 

Chambers  v.  Union  Trust  Co. . .  .  555 

Chaney  v.  Bryan 159,  161 

Chandler  v.  Barrett 67,  110,  112 

V.  Ferris 184,   232,  247 

Chandler's   Will 141 

Chapman    v.    Chapman 514 

Chappell  v.  Trent.  .  .83,  226,  234,  246 

Chappell's   Goods 583 

Charge  v.  Goodyer 536 

Charlton  v.  Hindmarsh 328,  330 

V.  IVIiller    426 

Charter  v.  Otis 483 

Chase   v.   Dickey 24 

V.  Kittridge..303,   323,   327,  328 

v.  Ladd    560 

V.  Stockett 494.  512 

V.  Winans   194 

Chasmer  v.   Bucken 529 

'Chatham   v.   Toothill 557 

Chaworth   v.    Beech 265 

Ciheadle,    Re 580 

Cheatham  v.  Hatcher.  .  .204,  205,  209 

245,  326,  329,  348 

Chees   v.    Lovejoy 389 

Cheever   v.   North 402,   412,  415 

Chehak   v.   Battles 


Sec. 

Cheney  v.   Goldy 236,  243 

V.  Selman    583,  585 

Cherry's    Will 174 

Chevallier's    Estate 120,  159 

193,  255 

Chew's  Appeal 605 

Child   V.    Elsworth 571 

V.   Wright 484 

Chilcott's  Goods 255,  447 

Childers    v.    Childers 557 

Chrisman  v.    Chrisman 68 

Christ  V.  Kuehne 272 

Cliristie   v.    Phyfe 466,  477 

Chiistman  v.   Roesch 220,  544 

V.    Whinyates 401,  430 

Christopher   v.    Christopher 425 

Christy   v.   Badger 51S 

Church  V.  Cliurch 529 

V.  Mundy    496,  524 

V.    Wilson 602 

Churchill   v.   Marks 602 

Chwatal  v.  Schreines 535 

Cilley  V.  CiUey. 174,   198,  326 

Claflin's  Will 323 

Clapp  V.  Fullerton 159,  163,  198 

200,  208,  229 

Clark  V.  Atkins 199,  512 

V.   Andover 5G0 

V.  Blake    20 

V.  Boonnan    463,  464 

V.  Butler    437 

V.  Clark    326 

V.  Clark    569 

V.  Dunnavant  347 

V.  Ehorn    420 

V.  Ellis    122 

V.  Fisher    223,  229 

v.  Hill    595 

V.  Hyman    509 

V.  Lear    112,  113 

V.  Morrison    195 

V.  Mosely    469 

V.  Ranson    437 

V.  Scripps    89,  397,   401,  4S0 

V.  Smith    393 

V.  Stansbury    240 


xl 


TABLE    OF    CASES    IX    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


8ec. 

Clark  V.  State 207 

V.  Vorce    353 

V.  Young 239 

Clark's    Appeal 57 

Clarke,  Goods  of 307,  310 

Re    513 

Clarkson  v.  Clarkson 384 

Clary  V.  Clary 201,207,  211 

Clay  V.  Wood 595 

Clayton  v.  Qay ton 483 

V.  Livermore    456 

Clawson   v.    Brewer 453a 

Cleaver  v.  Cleaver 537 

Cleland  v.  Waters 477 

Clemens  v.  Hecksher 552 

Clement  v.  Cheeseman 271 

Clements  v.   Collins 500 

V.  Horn 427 

Goods  of 472 

Clementson  v.   Gandy 587 

Cleveland  v.    Spilman 483 

Clifford  V.  Koe 533 

Cline  v.   Lindsey 68,  201 

Clingan  v.   Micheltree 263 

Claugh  V.  Claugh 424 

Clowes  V.   Clowes 519 

Clowes,   Re 496 

Coates  V.   Lunt 562a 

Cochrane   v.    Schell 523 

Cochran   v.   Brown 352 

Cochran's    Will 110 

Cock  V.  Cooke 264,  269,  273 

Cockrill  V.  Cox 140 

Coffee  V.  Coffee 396 

Coffin  V.  Coffin.... 231,  245,  326,  329 

Coffman   v.   Coffman 294,  479 

V.  Hedrick 77,  239 

Co^rdoll    V.   Cofr.loll 444,  44"),  449 

Coghlan   v.   Co;,'l)lan 113 

Cogswell  V.  .Armstrong 521 

Cohen's    Will 312 

Coit  V.  Patchen 164,  229 

fVilberg,  Goods  of 396 

Colbcrg,    Re 300 

(  olf  V.   MrClnro 403 

V.  Society    454 

T.  Warlf    478 


Sec. 

Cole's  Will 159,  160,  163 

Coleman   v.   Robertson 67,  188 

Coleman's    Estate 178 

Coles  V.  Mordaunt 363 

v.    Erecothick 255,  3 1 1 

Coles,   Goods  of 262,  26!) 

Coles,    Re 269 

CoUagan  v.   Burns 403 

Collett  V.   Collett 599 

Collier  v.    Collier 542 

V.  Grimesey    503 

V.  Simpson    207,  210 

Colligan  v.  McKerman 412 

Collins,    Re 326,   335,  336 

Collins   V.    Elstone 255 

V.  Wakeman    545 

Collison  V.  Girling 497 

Collup  V.   Smith 427 

Collyer  v.  Collyer 402 

Colt  V.  Colt 438 

V.  Hubbard 562 

Colton  V.  Colton 595.  610 

Coltsman  v.  Coltsman 550 

Colvin  V.  Warford 193  415 

Colyer's  Goods 273 

Combs  V.  Jolly 272,  312,  323,  328 

Comer  v.    Comer 274,  277a 

C  ommonwealth  v.  Rich 205 

V.  Rogers    211,  212 

V.  Sturtivant    199,  210 

Compton  V.  Collinson 53 

vl.  Pierson     57 

Corastoek  v.  Adams 19 

V.  Hadlyme    184,   218,  243 

Conant  v.   Stone 599 

Conboy  v.  Jennings 312,     346 

Conely  v.  McDonald 188 

Congregational  Society  v.  Hatch.  503 

Oonklin    v.    Conklin 246 

Conn.  Trust  Co.  v.  Chase 427 

Connor  v.  Gardner 553a 

Conrad  v.  Douglas 273 

V.  Long    22,    599,  604 

V.  Quinn    564 

C  onrarlo.s  v.  Heller 317a,  324 

Constable  v.  Tufnell 233 

Constantino  v.  Constantino 478 


TABLE    OF    CASES    IN    VOL.    I. 


xli 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Converse  v.  Converse 67,  92 

V.  Mix   149,  227,  235 

Convey's    Will 323 

Conway's    Will 312 

Cook  V.  Catlin 539 

V.  Cook    535 

V.  Danvers   583 

V.  Holmes    483 

V.  Lambert    316 

V.  Oakley    514 

V.  Parsons    311 

V.  Weaver 468 

V.  Winchester  343 

Cook,  Re  394 

Cooke  V.  Cholmondely 81 

V.  Turner    605 

Cbokson   v.    Hancock 417 

Coombs  V.  Queen's  Proctor 53 

Cooper  V.  Brockett 321,  322 

401,  435 

V.  Hepburn   530 

V.  Macdonald    51 

Cooper,   Goo<ls  of 287 

Cooper's   Ooods 219 

Cope  V.  Cope 594 

Coppin  V.  Dillon 216,  400,  439 

Corcoran's  Will 303 

Corey  v.   Corey 559 

Oorlass,    Re 537 

Cornell  v.  Lovett 603 

Cornell  University  Case 24 

Cornell's    Will 246 

Cornet  v.  Cornet 474 

Cornfut  V.   Layton 453 

Cornwall  v.  Church 507,  522 

Cornwell  v.   Isham 354 

V.  Riker     227 

Corr  V.  Porter 443,  447,  449 

Corrigan  v.  Kierman 468 

Coryton  v.  Helyar 479 

Cosgrave,    Re 602 

Cotter  V.  Layer 46 

Cotton  V.  Cotton 544 

V.  Scarancke 536 

V.  Smithwick 575 

V.  Ulmer   74,  159,  174 


Sec. 

Cottrell,  Re 340,  347 

Couch  V.  Couch 194 

V.  Eastham    218,  317a 

V.  Gentry    68 

Coudon  V.  Updegraff 513 

Coughlin's    Will 123 

Coulam  V.  Doull 20 

Coulson  V.  Holmes 427 

Coulter  V.  Shelmadine 272 

Council  V.  Mayhew 68,  110,  112 

Covenhoven  v.  Schuler 478 

Cover  V.   Stem 268,  277a 

Covey  V.  Dinsmore 497 

Cowan  V.  Shaver 231,  327 

Coward,    Re 53 

Cowdrey's    Will 81,  246 

Cowie  V.  Strohmeyer.  .16a,  213a,  223 

Cowley  V.  Knapp 265 

Cox  V.  Bennett 516,  574- 

V.  Britt    477 

V.  Jernigan    553a 

Cozzen's  Will 303,  305 

Craft's   Estate 426 

Craig  V.  Leslie 23,  34,  S.5 

V.  Trotter    329 

Craighead  v.  Given 519 

Grain   v.   Crain 268 

Craine  v.  Edwards 452 

Cram  v.  Cram 201,  203 

Cramer  v.   Crumbaugh 238,  245 

Crandall's  Appeal 178 

Crane  v.   Cowell 565 

Crane's    Will 24,  596 

Crapo  V.   Price 532 

Cravens  v.  Fanlconer 323 

Crawford  v.  Forshaw 592a 

v.  Redus    540 

Crawford's    Will 339 

Credille  v.  Credille 193,  238 

Creely  v.  Ostrander 218 

Cresswell   v.   Cresswell 23,  354 

Critchton  v.  Symmes 514 

Cripps  V.  Wolcott 565 

Criswell's   Appeal 553 

Crocker  v.  Smith 268,  272 

Crockett  v.  Crockett 557 


slii 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in  Volume   II. 


Croft  v.  Croft 346 

V,  Day   245 

Crofts,  Goods  of 51 

Croker  v.  Lord  Hertford 281 

V.  Williamson    299b 

Crone  v.  Odell 478 

Crook  V.  Hall 532,  534 

V.    Hill 534 

V.  Wliiteley    53G 

Crookenden  v.  Fuller 299 

Cropley  v.  Cooper 562 

Crosbie  v.  Macdonal 447,  450 

Crosgrove  v.  Crosgrove 537 

Crossan  v.  Crossan 67,  411 

Croasthwaite  v.   Dean 410 

Cronwell  v.  Kirk 212 

Crowley  v.  Crowley 323 

Crowninshield    v.    Crowninshield 

174,  175 

Crowson  v.  Crowson 193,  229 

Cruikshank  v.   Chase 592a 

Crum   V.    Crum 68 

V.  Tliornley    74 

Crumb's    Estate 246 

Crutcbfield  v.  Green 56ja 

Cuffee  V.  Milk 551 

Cullum  V.   Colwell 185 

C\ilver  V.  Haslam 20O 

Cummins  v.  Riorden 56Ga 

dimming  v.  Cumming 265,  268 

Oummings  v.  Cummings 537 

Cunniff  v.  Cunnlff 20,  238,  239 

Cunningham  v.  Cunningham 426 

V.  Parker  599,  600 

Cunningham,  Re  402 

Cunnion'B  Will   402,  412 

CurtJH  V.  Ijongfltreth 553 

CiiHhing   V.    Aylwin 11 

Cuthbertson'.s   Api)cal    245 

Cutler  V.  Cutler 401 

Cutter  V.  IJiitler 49,  50,  54 

V.  Douglity   534 

Cutto   V.   riilbcrt 407,  412 

D. 

Diibney    v.    Cotticll 505 

Dadd,  (JoodH  of 387 


Sec. 

Daintree  v.   Butcher 322 

Dale  V.  Dale 245,  568 

V.  White   562 

Dale's  Appeal 192,  195,  229,  239 

Dalton  V.  Scales 473 

Dalrymple  v.  Gamble 486 

Dammert   v.   Osborn 491 

Damon  v.  Damon 286,  283 

Damson  v.  Bibber 490 

Dana  v.  Burke 518a 

Dane  v.  Walker 534 

Daniel  v.  Hill 268 

V.   Nockolds    445 

V.  Whartenby 470,553,  554 

Daniels,   Goods   of 282 

Danley  v.  Jefferson 415 

Darkin  v.  Darkin 52 

Darley  v.  Martin 440 

Darling,   Re    21 

Darlington   v.   Pulteney 456 

Dasbwood  v.  Bulkeley 603 

Dauterive's  Succession   352 

Davenport  v.  Hanbury 535,  538 

Davers  v.  Dawes 519 

David's  Trusts,  Re 525 

Davidson   v.   Davidson 452a 

Davies   v.   Davies 544 

Davies,  Re    524 

Davies,  Goods  of 329 

Davis   V.    Angel 599,  603 

V.  Bennett 540 

V.  Boggs 478 

V.  Calvert 77,  227,  229 

231,  232,  233,  234,  241 

V.  Davis 253,  565 

V.  Davis 521 

V.  Edwards 540 

V.  Fogle 426 

V.  Hendricks 453,  454 

V.  Rogers 98,  185,  247 

V.  Sigourney 402 

V.  State 210 

V.  Toglo 426 

V.  Tromain 501 

V.  UpHon 491 

V.  Williams 255 

Davis,  Re    321 

Davis's  Will   460 


TABLE    OF    CASES    IN    VOL.    I. 


xliii 


See  also  Table  of  Cases  in  Volume  II. 


Sec.  I 

Davison  v.  Wyman 611  | 

Davy,  Goods  of 217,  219,  277  I 

Davy  V.  Smith 341 

Dawes  v.  Swan 473  \ 

Dawkins   v.    Dawkins 339 

Dawson   v.   Clarke 545 

v.  Dawson 270 

v.  Killet 562 

v.  Oliver-Massey 531,  603 

Day  V.  Day.... 98,  174,  247,  317,  596 

Day   V.   Meadows 268 

V.  Trig 516 

Day,  Ex  parte 454,  456 

V.  Washburn    453 

Deakins   v.   Dean 261 

Dean   v.  Dean 326 

V.  Gibson 514 

V.  Negley 229,  236 

V.  Mumford 564 

Deane  v.  Littlefield 40,  42 

Dearing  v.   Selvey 29 

Deave's  Estate    402 

De  Beauvoir  v.  De  Beauvior.  . .  .  547 

Deck   V.   Deck 232 

Decker  v.  Decker 29,  505,  574 

Dee  V.  Dee 477 

Deford  v.  Deford 521 

Defreese  v.  Lake 560,  568 

De  Kay  v.  Irving 470 

Delafield  v.  Parish.  .68,  69,  70,  71,  80 

174,  175,  176,  188,  233,  245,  386,  394 

Delameteer's   Estate    505 

Delaney  v.  Salina 68,  70 

De  Laveaga's  Estate 93,  186 

Delaveyne's  Will    351 

De  Levillain  v.   Evans 25 

Delmar,   Re    565 

De  Martini  v.  Allegretti 268a 

Den  V.  Crawford 488 

v.  Drew 510 

V.  Johnson 83 

V.  Milton 328 

V.  Zabriskie 542 

Denby,  Re    598 

Deneh   v.   Dench 258 

De  Neff  V.  Howell 224,  227 

Denison's  Appeal   243 


Sec. 

Denn   v.   Mellor 461,  550 

v.  Roake   525 

Denne  v.  Wood < 357 

Dennett  v.  Dennett 551 

V.  Hopkinson   512 

Denney   v.   Pinney 329 

Dennis  v.  Holsapple 281,  282,  583 

V.  Weekes  201 

Dennis,  Goods  of 447 

Denny  v.   Barton 265 

Denny  v.  Kettell 505 

V.  Pinney    326 

Denson  v.  Beaziey 160 

Denton  v.  Franklin 325 

Derickson  v.  Garden 562 

De   Rosaz,   Re 584 

De  Sauzay  v.  De  Sauzay 289 

De  Trafford  v.  Tempest 520 

Deupree  v.  Deupree 347,  426 

Deutsch  V.  Rohlfing 57 

De  Vaughn  v.  McLeroy 560,  562 

Devecmon  v.  Devecmon 270 

Devisme  v.  Mello 530 

Dew   V.   Barnes 477 

V.  Clark 74,  143,  155,  157 

Dewey  v.   Dewey 324 

Dewitt  V.  Barley 198,  200 

De  Witte  v.  De  Witte 557 

De  Witt's  Will 489 

Dewzer   v.   Gordon 37S 

Dexter  v.  Codman 251  a 

Dible's  Estate   5-'0 

Dicken  v.  Dicken •'i55 

Dicken   v.   McKinley 454 

Dickenson  v.  Blisset 95 

v.  Dickenson    258 

Dickerson's  Appeal   29,  495 

Dickie  v.  Carter 103 

Dickinson  v.  Dickinson 58,  355 

v.  Hayes 249 

v.  Moss 231 

V.  Stidolph 283,  447 

v.  Swatman 414 

Dickson's  Trust    6(J5 

Diehl's  Appeal  558 

Diehl  v.  Rogers 305 

Diener's  Estate  434 


xli 


TABLE    OF    CASES    IX    VOL.    I. 


See  also  Table  of  Cases  In   Volume  II. 


bKC 

Dietrick  v.  Dietrick 230,  242 

Diez,  Re   456,  457 

Dill  V.  Dill 473 

Dillon   V.   Gray 453a 

Dimes   v.   Dimes 122 

Ditchey  v.   Lee 598 

Ditton   V.   Hart 80a,  243 

Dixon  V.  Solicitor 45Sa 

Di^on,  Re   566 

Dixon's  Appeal 345,  393,  431,  432 

Doane  v.  Hadlock 432 

V.  Lake    20 

Dobson,  Goods  of 287 

Dockrum  v.  Robinson. .  .373,  374,  378 

Doe   V.  Allen 241 

V.  Barf ord     425 

V.  Burdett     326 

V.  Considine 560 

V.  Cross 269,  270 

V.  Edlin 427 

V.  Evans 410 

V.  Hardy 241 

T.  Harris    390,    395,  396 

V.  Hersey 351 

v.  Hicks 417 

V.  Hull 28  ^ 

V.  Laming 466,  552  j 

V.  Lancashire     425  i 

V.  Nichols     609  I 

V.  Palmer     435 

V.  Pattison     309 

V.  Perkes  390,  396 

V.  Priggs    565 

V.  Roe    575 

V.  Staple     424 

Donnan  v.  Donnan 239 

Donncly,  Re   22,  23,  237 

Dorioliue  V.  McNichol 562,  563 

Donovan's  Estate   230 

Doorly  V.  Iliggins 542 

Dooling  V.   Ilobbs 533 

Dornian,  Re   161 

Dornick   v.   Roirhbach 69 

DorrJe's   Snccfusion    365 

Dorwy   V.    Warficld 203 

DotlH  V.  Fftzcr 244 


Sec. 

Douce,  Goods  of 310 

Doe  V.  Toefield 511 

V.  Walker     487 

V.  Watson    477 

Doker  v.  GofI 318 

Dombrowski's  Estate 303 

Dominick  v.  Michael 64 

Don  V.  Brown 394 

Donaldson,  Goods  of   366 

Donegan  v.  Wade 605 

Dougherty  v.  Dougherty 288,  289 

V.  Holscheider      256 

v.  Rogers    575 

Dougherty's   Estate    324 

Douglas's  Estate   83,  239 

Dove  V.  Torr 563 

Dow  V.  Dow 513 

Dower  v.   Seeds 387,  402 

Down  V.   Down 516 

Downey  v.  Murphy 245,  247 

Downie's  W^ill   342 

Downing  v.   Bain 479 

Drake   v.   Drake 594 

Drant   v.   Vause 497 

Downing  v.  Grigsby 460 

v.  Marshall     24,  529 

Drake  v.  True 513 

Drake's   Appeal    245,  246 

Draper's  Estate    81,  207 

Drennen  v.  Branch 605 

Drew  V.   Drew 516,  517  574 

V.   Wakefield 519,   521,  537 

Drewry  v.   Barron 541> 

Dreyer  v.   Reisman 255,  584 

Drinkhouse's  Estate 161 

Drummond's  Goods    295 

Drummond  v.  Leigh 534 

v.   Parish    367 

Duane,  Goods  219,  250 

Dudderar  v.   Dudderar.185,  193,  227 

238,  242 

Duddy  V.  Gresham 603 

Dudley  v.  Mallory 265 

i:)ulT's  Goods    280 

DufTie  v.   Corridon 32S 


TABLE    OF    CASES    IN    VOL.    I. 


slv 


See  also  Table  of  Cases  in   Volume  II. 


Sec. 

Dudley  v.  Gates 406 

Duffield  V.  Duffield....437,  523,  562 

V.  Elwes    447 

V.  Morris. 70,   120,  125,   126,  186 

189,  191,  198,  204,  205,  229,  245 

Dufour  V.   Pereira 456 

Dugdale,  Re 602 

Du  Hourmelin  v.  Sheldon 34 

Duraond  v.   Kiff 140 

V.  Duncan 440 

Duncan  v.  Harper 535 

Dunham's  Appeal.. 74,  159,  201,  203 

Dunlap  V.  Dunlap 449,  486 

V.  Garlington     557 

V.  McCloud     599 

Dunlap's  Appeal  20 

Dunn's   Appeal    64 

Dunn  V.  Bank  of  Mobile 265 

V.Dunn    59,334,  443 

V.  Morse      595 

Dunshee   v.   Dunshee 542 

Duran  v.  Friend 534 

Durham  v.  Clay 522 

Durham  v.  Northen 281 

V.  Smith   70 

Durour  v.   Motteux 524 

Dwight  V.   Gibbs 534,  544 

Dye  V.  Young 243 

Dyer  V.  Dyer 119,  186 

V.  Erving   435 

Dyer,  Re  258 

Dykeman  v.  Jenkins 600 

E. 

Eales  V.   Cardigan 566 

Earl  V.  Rowe 503 

Early  v.  Early 387 

Easterbrooks  v.  Tillinghast 545 

Easterlin  v.  Easterlin   420 

Easterly  v.   Keney 606 

Eastis  V.  Montgomery ..  227,  243,  246 

Easton  v.   Seymour 367 

Eastwood  V.  Lockwood 477 

Easum  v.   Applet ord 520 

Eaton  V.  Brown 289 


Sec. 

Eberts  v.  Eberts 570 

Eby  V.   Eby 542 

Eccleston  v.  Petty 341 

Eckert  v.  Flowry 203,  229,  232 

Eddey's   Appeal 200,  209 

Eddy  V.  Matthewson 533 

Edens  v.  Miller 518 

Edge  V.  Edge 126,  140 

Edgerly  v.  Barker 539 

V.  Edgerly    239 

Edmonson  v.  Bloomshire..      512,  513 

Edson  V.  Parsons 454 

Edwall's  Estate    268 

Edward  v.  Edward 21 

Edwards  v.  Slate 453 

V.Smith    265,    270,  276 

Edward's  Appeal    426 

Eeles,    Goods   of 398 

Ehle's   Will    518 

Ehler's  Will     488 

Ehrman  v.  Haskins 516 

Eidt  V.  Eidt 466,  468,  477 

Ela  V.   Edwards.  .314,   324,   327,  337 

346,  347 

Elkinton  v.  Brick 191 

Ellis  V.  Darden 424 

V.  Ellis     199,  599 

Elliott's  Will   '^n,  230 

Elliott  V.  Elliot 141,  534 

Elliott,   Re 21,  600 

Ellis  V.   Cary 453,  454 

V.  Flannigan    343 

V.  Houston     534 

V.  Plason    268 

V.  Smith    321,  327 

Elmesley  v.  Young 543 

Elms  V.  Elms 390,  396 

Elmee  v.  Ferguson 180 

Emerson   v.   Boville 425 

Emerson,  Goods  of 303,  300 

Emery  v.  Neighbor 49,  54 

V.  Wason    507 

Emery,  Re    532 

Emmert  v.  Hays 57,  516 

Enders  v.  Tasco 595 


xlvi 


TABLE    OF    CASES    IX    VOL.    I. 


See  also   Table  of   Cases   in   Volume   II. 


Sec. 

Engelthaler   v.   Engelthaler 578 

England  v.   Fawbush 238,  245 

Englerth  v.  Kellar 554 

Englert  v.  Englert IGO 

English,   GcMxls   of 277 

Ennis  v.  Pentz   537 

V.  Smith   509 

Epps  V.  Dean 427 

Erickson  v.  Robertson 61 

Errickson  v.  Fields 183 

Erwin  v.   Smith 587 

Eschbach   v.   Collins 397,  432 

Este  V.  Este 64 

Estep  V.   Morris 358 

Estebrook  v.  Gardner 77 

Etchison  v.  Etchison 342 

Ethridge  v.  Bennett 245 

Eustace,  Goods  of 60 

Euing  V.  Barnes 553 

Eustis  V.   Parker 350 

Evans's  Appeal. .  .314,  393,  403,  420 

Evans  v.  Crosbie 511 

V.  Evans   427a,  436,  437 

V.  Field     519 

V.  Folks    559 

V.  Godbold     542,  563 

V.  Hudson     478 

V.  Jones    535 

V.  Lauperdale    268 

V.  Smith    265,  456,  457 

Evens  v.  Griscom 517 

Evenson's  Will    132 

Everett's  Will    242 

Everhart  v.   Everhart 304 

Evoritt   v.   Everitt 610 

Kvort's   Efitato    246,  249 

Ewcn   v.    Franklin 337 

Eyer  v.   Storer 491 


Fahons  v.  Fabcna 547 

Fairr-Jiild  v.   BaHcomb.  .204,  205,  208 

212,  244 

v.    r.iiHlincIl     535 

V.  KdHon   610 


Sec. 

Fairfax  v.  Brown 55!) 

V.  Hunter   35 

Fane,  Ex  parte 48,  C-l 

Parish  v.  Cook 52i 

Parish  v.  Wayman 559,  560 

Farmer  v.   Kimball 540 

Farmer's  Trust  Co.,  Pie 487 

Farnam  v.   Farnam 537 

Farnham  v.  Baker 60.5 

I'arr  v.  Thompson 229 

Faust  V.   Birner 522 

Faux,  Re    356 

Fawcett    v.   Jones 216,  21 !) 

Fay's  Estate    256 

Fear  v.  Williams 393 

Fee  V.  Taylor 174 

Fellows  V.   Allen 401,  424 

Feltman  v.  Butts 470 

Fenn  v.  Death 533 

Fenton's  Will    81 

Fenwick  v.  Chapman 467 

Ferguson-Davie   v.    Ferguson-Da- 

vie 272 

Ferguson   v.    Hodges 521 

v.  Stewart    542 

v.  Zepp 470 

Fergusson's  Will 401 

Ferrer  v.  Pyne 540 

Ferry  v.   Smith 478,  48Sa 

Ferry's  Appeal    477 

Fetherstone  v.  Fetherstone 553 

Fettiplace  v.   Gorges 51 

Fianncr  v.   Fianner 426 

Fidelity  Trust  Co.'s  Appeal 426 

Field's  Appeal  177 

Field's   Will    284,  312 

Finch  V.   Combe 434 

Finch  V.  Finch 40? 

Fincham  v.  Edwards. 98,  99,  317,  343 

Findlay   v.    Riddle 553 

Finelite  v.   Sinnott 517 

Finger  v.   Auken 453 

Finlay   v.   King 598,  600 

Fiott  v.   Commonwealth 35 

Firth  V.  Denny 519 


TABLE    OF    CASES    IN    VOL..    I. 


xh 


See  also  Table  of  Cases  in  Volume  IL 


f:EC. 

Fiscus  V.  Wilson 26Sa 

Fisher's  Goods   269,  275 

■Fisher  v.  Hepburn 514 

V.  Kimball   49 

V.  Skillman     530,  540 

V.  Spence     351,  355 

Fisher,  Re    406 

Fitzgerald's  Estate    603 

Fitzpatrick  v.  Fitzpatrick 220 

Fitzsimmons  v.  Harmon 595 

Flannery  v.  Hightower 574 

Fleming   v.   Boiling 523 

V.  Fleming   407 

Fleming  v.   Morrison 215,  277a 

Flinn  v.  Owen 327 

Flint  V.  Trust  Co 542 

Flintham  v.  Bradford 415 

Flood  V.  Pragoflf 324 

Florey  v.  Florey..l46,  159,  163,  230 

248 

Floyd  V.    Floyd 386,  407 

Fluck  V.  Rea 126 

Folks  V.   Folks 246 

Foot  V.   Stanton 118 

Forbes   v.   Darling 588 

Forbes  v.  Gordon 287 

Ford  V.   Ford 331,  384 

V.  Teagle 402 

Forgner's  Estate   289 

Forman's  Will 384 

Forney  v.   Fennell 195 

Forth  V.  Chapman 564 

Foss  V.   Crisp 35 

Fosselman  v.  Elder 267 

Foster's  Appeal  402 

Foster  v.  Dickerson   242 

V.  Foster     •' 402 

V.  Holland 562 

Fountain  v.   Brown 238 

Fourdrin  v.   Gowdey 34 

Fowler  v.  Fowler 505 

V.  Lewis    210 

Fowler's   Will    223 

Fox  V.   Marston 426 

V.  Phelps    486 


Sec. 

Fox's  Will   24 

Fralick  v.  Lyford 24 

France's  Estate 594 

Francis  v.  Grover 393 

V.  Marsh     424 

V.  Wilkinson    239 

Francis,  Re    562 

Francis's  Will   400 

Frank  v.  Chapman    335 

Franklin  v.  Belt 218 

Franks,  Ex  parte 53 

Fransen's  W^ill    446 

Frary  v.  Gusha 120,  204 

Eraser,  Goods  of ! 64,  296,  422 

Eraser  v.  Hamilton 522 

V.  Jennison   190,    192,  193 

Frazer,  Re   512 

Frear  v.  Williams.  176,  178,  247,  384 

393 

Frederick's  Appeal    265,  268 

Freed  v.   Clarke 268 

Freeman  v.   Coit 475,  514 

V.  Freeman..  .68,    197,    239,  371 

409,  412 

V.  Phillips    602 

Frelinghuysen  v.  Insurance  Co..  487 

French   v.   French.. 78,   288,   289  290 

Frick  V.  Frick 569,  576 

Frink   v.    Pond 353 

Friend's  Estate  605 

Frith,  Re    331 

Fritts   V.   Denemberger 239 

Fritz  V.  Turner 305,  306 

Frogley  v.   Phillips 536 

Frogley,  Re    22 

Frost  V.  Blackwell 599 

V.  Courtis     566 

V.Wheeler     126,  213a 

Frush  V.  Green 239 

Fugnett's   Will    258 

Fulbright  v.  Perry  County 184 

Fulkeson   v.   Chitty 505 

Fulleck  V.  Allinson 163 

Fuller   V.   Hooker 7 

V.  Hooper     436 


xlviii 


TABLE    OF    CASES    IX    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


Puller  V.   Wilbur 

Fulton  V.  Harmon . . .  . 
Fulton  V.  Umberhend. 
Funk  V.  Eggleston.  . , . 


Sec. 
603 
533 
174 
526 


G. 

Gable  v.  Ranch 324 

V.  Daub  11,  442 

Gadd  V.  Stoner 550 

Gaffield  v.  Plumber 473 

Gafney  v.  Kenison 502 

Gage  V.  Gage 265,  273 

Gains  v.   Chew 223 

Gaines's  Succession   491 

V.  Lizardi     255 

Gaither  v.  Gaither 23G 

Gaither  v.  Townsend 562a 

Gallagher  v.   McKeague 489a 

Gamboa's  Trusts 563 

Gangwere's   Estate    110,  110 

Gamber's   Will    325 

Gardner  v.  Courthope 439 

V.  Frieze   243 

V.  Gardiner    126,     127,  229 

236,  394 

V.  Gardner    427 

Gardiner  v.  Gardiner 185,  227 

396,  434 

V.  McNeal    407 

V.  Heyer    534 

V.  Lamback    159 

V.  Merritt    25 

Garland's    Will IGa 

Gamett's    Goods 281 

Garrand's  Estate 585 

Garrett  v.  Dabney 40 

V.  Garrett    480 

V.  Ileflin    245,  331 

Garrick  v.  f  amflrn 543 

Garii-oii  v.  Garrison.  ..  178,  182,  183 

203,  209 

Gartli  V.  Garth 514 

GaHt(!r    V.    (JiiHter 10 

Ga.ston'H  Estatr- 203.  260,  274 

Ga8»  V.  fJa.H-                    ..72,   150,  337 


Sec. 

Gawler  v.   Standerwick 223 

tray  V.  Gay 394,  403 

V.  Gillilan    238 

V.  Sanders    320 

Gaze  V.  Gaze 307,  321 

Geale,   Re 07 

Gehrke  v.  State 200 

Geiger  v.   Bardwell 70,   96,  141 

Genery  v.  Fitzgerald 523 

George  v.   Bussing 49 

V.  George    249 

George  III,  Goods  of 37 

Gerbrich  v.  Freitag 459 

Gerrish  v.  Nason.  .  174,  175,  245,  330 

Gesell  V.  Baugher 77,  186 

Gibbes  v.  Holmes 495 

Gibbins  v.  Shepard 595 

Gibbons  v.  Gaunt 425 

V.  Fairlamb    542,  544 

Gibson  v.  Dooley 22 

V.  Gibson 127,  193,  198,  201 

203,  205,  207,  440,  498 

V.  McCall    24 

V.  Nelson    328 

Gicks  V.  Stumpf 193 

Giddings  v.  Turgeon 11,  355 

Giffin  V.  Brooks 397 

Gifford  V.   Dyer 218,  410 

V.  Tliorn    502 

Gihon's  Will 84,  239 

Gilbert  v.  Knox 326,  329 

Cile.5   V.   Giles 390 

V.  Warren.... 384,  389,  396,  401 

Gill   V.  Bagshaw 502 

V.  Gill    387 

V.  Peurson    602 

V.  Shelley    534 

Gill.nnd  v.    Ilallott 533 

fJillctt   V.   Wray 599 

Gillis  V.  Gillis 348 

Gillow  V.  Bourne 260 

Gilman  v.  Ayer 84,  141,  23S 

Gilmor's    Estate 449 

Gilmer  v.  Stone 573,  583 

Cilpin  V.  Williams 490 


TABLE    OF    CASES    IN    VOL.    I. 


xlix 


See  also  Table  of  Cases  in  Volume  II. 


fcEC. 

Gilreath  v.  Gilreath 230,  235 

Ginder  v.  Farnum 314 

Girard   v.   City   of   Philadelphia, 

29,  486 

Gittings  V.  McDermott 542 

Given  v.  Hilton 490,  507,  510,  514 

Givin   V.   Green 348 

Glancy  v.  Glancy 312 

Glass  V.  Hulbert 586 

Glass's  Estate 26,  203,  242,  394 

Glasscock    v.    Smither 420 

Gleespin's    Will 229,  238 

Glifton  V.   Murray 98 

Gloucester  v.  Wood 545 

Glover  v.  Baker 21a,  24,  492a 

583,  596 

V.  Condell    558 

V.  Hayden    239,  242 

V.  Spendlove     524 

Glynn  v.  Oglander 272 

Goble  V.  Grant.. 78,  110,  187,  188,  189 

Goddard    v.    Amory 536 

Godden  v.  Burke.  .  .  118,  120,  186,  256 

V.  Crowhurst    606 

Godfrey  v.  Humphrey 550 

V.  Smith   371,  373,  377 

Goebel  v.   Wolf 562 

Gold  V.  Judson 486 

Goldstricker's    Will 458a 

Gombault  v.  Public  Admr. ...  78,  95 

96,  109,  110,  112,  113,  114,  115 

119,  122,  189 

Gomez  v.  Higgins 268 

Gooch  v.  Gooch 512 

Goodright  v.   Harwood 412 

V.  Glazier    413,  415 

V.  Opie    521 

V.  White   548 

Goodsell's    Appeal 382,  424 

Goodtitle  v.  Herring 553 

V.  Southern    574 

V.  Welford    351 

Goodwin  v.  Coddington 479,  489 

Gord  V.   Needs 573,  577 

Gordon  v.   Burris 583 

V.  Whitlock    407 


»iEC. 

Gordon  v.  Hoffman 409 

Gorton  Pew  Lo.  v.  Tolman 501 

Gossling's    Goods 422 

Goss  V.  Lord  Nugent 568 

v.  Tracy    223 

Gough  V.  Findon 257,  269 

Gough,    Re 505 

Gould  V.  Mansfield 454 

V.  Safford  367,  373,  375 

376,  378 

Gould's    Will 415 

Goulder,    Re 606 

Gourley  v.   Thompson 490 

Graber  v.  Haaz 348 

Grabill  v.  Barr 281 

Grace  v.  Perry 580 

Graham  v.  Burch.  .386,  387,  395,  427a 

V.  Deuterman    84,  188 

V.  Graham   ...312,  342,  527,  568 

V.  Lee    600 

Graham,  Goods  of 59,  C4 

Grand  Lodge  v.  Wieting 205 

Grant  v.  Grant 41 

Grantley  v.  Garthwaite 391,  3!i3 

Gray   v.   Garnett 490 

V.  Hattersley    488 

Gray,    Re 592 

V.  Rumrill    174 

Graydon  v.  Graydon 603 

Greated  v.   Greated 521 

Greene  v.  Rathbun 532a 

Green's   Appeal 536 

Green  v.  Crane 325 

V.  Dunn    521,  546 

V.  Pertwee    519 

V.  Skipworth    259 

Greenough  v.  Cass 466 

V.  Greenough    304,  306 

Gregory  v.  Smith 537 

Greenwood  v.   Cline 168 

v.  Greenwood 68,  479,  483 

V.  Rothwell    554 

Greenwood,   Re 509 

Greenwood's    Case 157,  101 

Greenwood's    Goods 433 

Gregory  v.   Gates 53 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


Greig,  Goods  of 

Greig,  Re 283, 

Gresley   v.   Mousley 

Greville  v.  Tylee 401, 

Grieves  v.  Rawley 

GriflBn  v.  Griffin 

V.  Mcintosh    268, 

Griffith  V.  DiffenderfTer.225,  226, 

Griffiths  V.  Griffiths 

Griggs  V.  Griggs 

Grimes  v.  Smith 

Grimke  v.  Grimke 

Grimm  v.  Filtmann 357, 

Grimmer  v.   Friederick 

Gri scorn  v.   Evens 502, 

Griswold   v.   Griswold 

Groom  v.  Thomas 

Grossman's   Estate 

Gross's  Goods 

Grothe's  Estate 466,  479, 

Grove  v.  Spiker 

Grifbbs  V.  Marshall 

V.  ]^IcDonald 174,  176, 

309, 

Gryle  v.  Gryle 

Guarantee  Trust  Co.  v.  Walker . . 

141, 
Guardhoxise  v.  Blackburn 

219, 

Gugel  V.  Vollmar 

Guild   V.    Allen 

GuJlfoyle's    Will 

Gullan,  Re 

Gulley  V.  Lillard 

Gulliver  v.  Ashby 

Gully  V.  Neville 

Gumtow  V.  Jankc 

Gunning's   E.state 485,  599, 

Gundry  v.  Pinniger 

Gunetan,  Goods  of 321, 

Guthrie  v.  Price 

Gwillin  v.  Gwillin .322, 

Guy  V.  0»bf>rnc 


Sec                                  H.  Sec 

439    Habergham  v.  Vincent 265,  26(5 

439                                                          272,  281 

28    Habeshon  v.  Vardon i2 

435    Hacker  v.  Newborn 23G 

535    Haddon  v.  Fladgate 51,  52,  53 

255    Hadley  v.  Hadley 473 

277a    Hagan  V.  Yates 239 

243    Hagger   v.   Payne 530 

334    Haines  v.   Haines 387 

437            V.  Hayden    193,  243 

522    Hairston  v.  Hairston 418,  431 

49    Hale  v.  Tokelove 447 

324    Haley  V.  Gatewood 486,  510 

563    Halford  v.  Halford 255,  287 

517    Hall  v.  Bragg 268 

268            V.  Dougherty    116 

173            V.  Hall   ...72,  163.  190,  228,  229 

374                               312,  342,  350,  530,  535 

491             v.  Smith    503 

562            V.  Unger    163 

246            V.  Warren    109,  1 10 

327            V.  Waterhouse    51,  52 

306    Hall,  Re 23,  391,  534 

434    Halley  v.  Webster.  .110,  187,  189,  200 

321    Hallowell  v.   Hallowell 312 

68    Halsey  v.  Patterson 544 

185            V.  Hall    472 

217            v.  Hancock    532 

221            V.  Perry   68,  71,  83,  215 

422    Halsted,   Re 610 

538    Halton  v.  Foster 543 

303    Hamburger   v.   Rinkel 185 

389    Hamley  v.  Gilbert 596 

540    Hammersly  v.  Lockman 402 

600    Hammond  v.  Dike 194 

496            v.  Hammond    510 

403    Hamilton  v.  Hamilton. 81,  404,  565a 

604            V.  Hodsdon     510 

563  V.  McQuilan     28 

.522            V.  Peace    23 

98            V.  Ritchie     472 

347            V.  Wentworth    553 

535    Hamilton's  Estate 291,417,  421 

Hamilton,    Re   595 


TABLE    OF    CASES    IN    VOL.    I. 


li 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Hammond  v.  Hammond 453a 

Hammond,   Goods  of 322 

Hampton  v.  Hardin 353 

Handley  v.   Palmer 24 

V.  Stacey     126 

V.  Wrightson   537 

Hankins  v.  Columbia  Trust  Co..  57 

Hansen,  Ee   574,  594 

Hanvy   v.   Moore 542,  568 

Harbison  v.  Boyd 159 

Hardenburgh  v.  Hardenburgh.77,  159 

161,  IGla 

Hardenbergh  v.  Ray 29,  486 

Harder  v.   Harder 454 

Harder  v.  Hays 110,  119,  189 

Harding  v.  Glyn 537 

Hardy  v.  Merrill 200,  201,  203 

Hare  v.   Cartridge 593 

Hargroves  v.   Redd 403 

Harlan  v.   Manington 553 

Harland  v.  Trigg 595 

Harlow  v.  Bailey 603 

Harmon  v.  Brown    603 

Harp  V.  Parr. 238,  239,  243,  325,  329 

348,  350,  357 

Harper  v.  Blean 524 

V.  Harper   78,  174,  198 

V.  Phelps    537 

Harper,  Re 95 

Harrell  v.  Harre 140,  236,  238 

Harris  v.  Bedford 266 

V.  Berrall   384 

V.  Davis ' 407 

V.  Lloyd    532 

V.  Panama  R 210 

V.  Pue   258 

Harris's  Estate  539 

Harris,    Re 389 

Harrison,  Re 534 

Harrison's  Appeal    248 

Harrison's  Will  227 

Harrison  v.  Elvin 339 

V.  Harrison     331,  595 

V.  Nixon      400 

V.  Rowan. 67,   187,  203,  205,  209 


Sec. 

Hart  V.  Hart 425 

V.  Rust    268 

V.  White     510 

V.  Whitlock    407 

Harteau,  Re  507 

Hartford  Trust  Co.  v.  Purdue.  . .  548 

Hartford  Trust  Co.  V.  Wolcott..  544 

Hartley  v.  Lord 68 

Hartley,  Re   600 

Hartman   v.    Stickler 139,  235 

Hartwell  v.  McMaster 304 

Hartwell  v.  Tefft 534 

Hartz  V.  Sobel 394,  397 

V.  Chateau    448 

Harvard  College  v.  Balch 526 

V.  Cooke    512 

V.  Sullens    140,    240,  246 

Harvey  v.  Ballard 488a 

Harvey,  Re   21,  64 

Harwell   v.    Lively 415 

Harwood  v.  Baker 68,  83 

V.  Goodnght    3,  413,  437 

Hascall  v.  Cox 542 

Hastie's  Trusts   22 

Hastings  v.  Day 424 

v.  Rider.  198,   199,  202,  205,  207 

Hastings,  Re    575 

Hatch  V.  Bennett 507 

Hatfield's  Will    355 

Hathorn  v.   King 73 

Hatton  V.  May 596 

Haug  V.  Schumacher 522 

Haus  V.  Palmer^ 370,  371,  375 

Harvard  v.  Davis 444 

Haven  v.  Foster .  .  .  447,  449,  486,  487 

V.  Hilliard 350,  353 

Havens  v.  Van  Den  Burgh.. 425,  426 

Haverstick's   Appeal 54S 

Hawe  V.   Earles 509,  511 

Hawes  v.  Humphrey 353 

V.  Nicholas   415 

Hawke  v.  Chicago  R 482 

V.  Euyart 450,  GO4 

Hawkins  v.  Hamerton 540 

V.  Garland    575 


lii 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


Sec 

Hawkins  v.  Hawkins 355 

Hawley  v.  Northampton 560 

Hay,    Re 437  450 

Hayden  v.  Barrett 534 

V.  Stoughton    496 

Haydock  v.  Haydock 226,  228,  229 

Hayes  v.  Davis 598 

Hayes  v.  Harrison 598 

V.  Hayes   410 

V.  King    538 

V.  Hayes    16a,  233 

V.  Seavey   19 

Haygood's    Wlill 376 

Hayne  v.  Irvine 542 

Hayne  v.  Jodrell 536 

Haynes  y.  Haynes 30G 

V.  McDonald   522 

V.  Sherman    21 

Hayne's    Estate 450 

Hays,  Gk>ods  of 360 

V.  Jackson    2t) 

Hazard  v.  Gushee 486,  540 

Hazelrig  v.  Hazelrig 513 

Head  v.  Nixon 411 

Heald  v.  Thing 200,  207,  211 

Healey  v.  Bartlett 342 

Healy  v.   Healy 538,  548 

Heard  v.  Horton 548 

V.  Reed    548 

Hearn  v.  Ross 218 

Hoaston  v.  Kreig 26S 

Heath  v.  Cole 329 

V.  Knapp 495 

V.  Koch 239 

V.  Lewis 603 

V.  Witliington 64 

Health's  Goods    282 

Hfiitley    V.    Long 28 

IIc-btlen'H  Will 373,  374,  378 

Heck    V.   riippeiiger 537 

Heeb  v.  lleeb 480,  482 

Hfgarty's  Appoal    253,  256 

Heiflelbaiigh  v.  Wagner 478 

IJeilrnan  v.   Ileilman 474a 

Heineman'H   A|)p('al    10 

Heiao   v.   Ileiso 405,   418,   420,  l.'!l 


Sec. 

Heisen    v.    Ellis 469 

Hellerman's  Appeal   477 

Hellier  v.  Hellier 407 

Helmer   v.    Shoemaker 484 

Helyar  v.  Helyar 408 

Heming    v.    Willets 499 

Hemingway's   Estate    147 

Hendershot   v.   Shields 478 

Henderson  v.  Cross 602 

V.  Henderson.  .537,  542,  554,  56Ga 

Henfrey  v.  Henfrey 407,  409 

Hennington  v.  Budd 427 

Henry,   Ex  parte 323 

Henry  v.  Henry 514 

Henshaw    v.    Foster 258 

Hephinstall   v.   Gott 524 

Herbert    v.    Berrier 174,  308 

v.  Herbert    367 

Herd   v.    Catron 603 

Herring  v.   Williams 469,  565a 

Hershy    v.    Clark 459 

Herster   v.   Herster 243 

Hertz    v.    Abraliams 556 

Hervey-Bathurst    v.    Stanley....  599 

Heseman  v.  Vogt 193 

Hess    V.    Killebrew 185 

Hess's   Appeal    98,  317 

Hess's    Will     239 

Hesterberg  v.  Clark 431 

Hetley,  Re   578 

Hewitt's  Will 312 

Hcydon's   Will    498 

Hey  wood   v.    Hey  wood 583 

Hibbert   v.   Hibbert 537 

Hibbits    v.    Jack 603 

Hick    v.    Dring 509 

Hick's    Estate     477 

Hickman   v.  Brown 57 

Hicks,   Goods   of 296,  422 

Higgins   v.   Carlton.. 68,   77,    174,  184 

303,  329 

Higgins   V.   Eaton 438,   490,  589 

Iliggin'B  Will   347,  348 

High's  Case    265 

High    v.    Wilson 126,  256 

[lildroth    V.    Hildreth 250 

Hill   V.   Bowers 540 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  In  Volume  II. 


Sec. 

Hill  V.  Bowman 583 

V.  Downes 477,  602 

Hill    V.    Gianelli 453a 

V.  Harding   459 

V.  Hill 529 

V.  Rockingham   Bank 530 

V.  Thomas 561 

V.  Walker 437 

Hilliary    v.    Hilliary 555 

Hill's   Succession    386 

Hillsdale  College   v.   Wood 595 

Hinckley    v.    Simmons 41 

V.  Thatcher    583 

Hindmarsh  v.  Charlton. 328,  333,  345 

Hindmarsh,  Goods  of 435 

Hindson  v.  Kersey 182,  353 

V.    Weatherill    245 

Hines,  Goods  of 385 

Hinkle  v.  Landis 268 

Hinkle's  Appeal    559 

Hinton  v.  Milburn 548 

Hiram  v.  Griffin 57 

Hiscocks  V.   Hiscocks.  .  .574,  575,  576 

578,  582 

Hise  V.   Fincher 386,  387,  395 

Hitchins    v.    Bassett 412 

V.  Wood  280,  401 

Hitchcock  V.  Hitchcock 476 

Hitchcock    V.    Shaw 354,  356 

V.   U.   S.   Bank 487 

Hite    V.    Sims 163 

Hix   V.   Whittemore....llO,    122,  187 

Hobart   v.   Hobart 346,  447 

Hobbs    V.    Knights 389,  396 

Hobson  V.  Blackburn 456,  494 

V.    Moorman    243 

Hochstedler  v.  Hochstedler 478 

Hocker  v.  Hocker 265,  266 

Hock's    Will     149 

Hodgkinson's   Goods    414 

Hodgson  V.  Bective 523 

V.  Halford 603 

V.  Jex 509,  514 

Hodsden  v.  Lloyd 46,  50,  424 

Hodson    T.    Ball 503 

HoflFman  v.  Hoffman 240 

V.  N.  E.  Trust  Co 468 


Hoffman's    Will    562a 

Hogan  V.  Grosvenor 324 

Hogan  V.  Jackson 470,  483 

Hoge    V.    Fisher 116 

Hogeboom  v.  Hall 599 

Hoit    V.    Hoit 605 

Hoitt   V.   Hoitt 403,  422,   424,  427 

Holbrook's    Estate     603 

Holden    v.    Blaney 437 

Holland  v.  Alcock 21 

Hollinger   v.   Syms 159,  160 

Hollingsworth's   Will    245 

Hollinrake  v.  Lister 600 

Holloway   v.    Clarkson 544 

V.  Institute    583 

Holman   v.   Perry 54,  .  250 

Holmes  v.  Campbell  College. 80a,  215 

248 

V.  Cradock 478,  562 

V.  Holmes 57 

V.  Mackenzie 490 

V.  Miner 489 

Holt    V.    Sindrey 534- 

Holt's   W^ill    355 

Holton    V.    Cochran 159 

Holyland,  E.x  parte.  .40,  109,  110,  187 

Holzman  v.  Wager 43 

Home  V.   Noble 437,  477 

Home  V.  Pillans 565 

Homer    v.    Shelton 478 

Honaker   v.   Starks 472 

Hone  V.  Van  Schaick 470,  533 

Hood   V.   Archer 60 

Hooker    v.    Axford 586 

Hook's  Estate   235 

Hoope's    Estate    478 

Hooper's  Estate   187 

Hopewell    v.    Ackland 483 

Hopkins  v.  Hopkins 523 

V.  Keazer    507 

Hopper    V.    Hensen 574 

Hopper's   Estate    281,  570 

Hopwood  V.  Hopwood 440 

Horah    v.    Knox 242 

Horn  V.  Pulman.84,  136,  137,  139,  238 

Hornby,    Ex    parte 477 

Horr.er  Re    544 


liv 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in   Volume  II. 


Sec. 

Horsf ord,  Goods  of 389 

Horsford,  Re   316 

Horton    v.    Earle 566 

Horton   v.   Johnson 339 

Hoshauer  v.  Hoshauer 243 

Hospital  Trust  Co.  v.  Keith 427 

Hotham  v.   Sutton 505,  514 

Hougham    v.    Sandys 525 


Houghton    V.    Brantingham.  .472, 


490 
549 
543 
542 
24 
195 


V.    Hughes 469,    542, 

V.  Kendall 533, 

House  of  Mercy  v.  Davidson..  .  . 

How  V.  Pullman 

Howard  v.  American  Peace  Society 

479,  575 

V.   Carusi    558,   559,   560,  595 

V.  Howard 70 

Howard,    Re    409 

V.    Hunter     394 

Howe  V.  Howe 229 

V.  Watson    454 

Howell's  Estate    523 

Howell    V.    Ackerman 542 

Howes    V.    Colburn 348 

V.    Barden     243 

Hovey  v.  Chase   91 

Hoxie    V.    Hoxie 468 

Hoxton  V.  Griffith 540 

Hoyt    V.    Hoyt 604 

Hubbard  v.  Alexander 215 

V.  Hubbard  77,  361,  365,  366,  367 

397,   399,  421 

V.   Lee    299 

V.  Lloyd    531 

Hnbbuck's  Estate   220,  584 

Hubor,    Re     299 

Ihickvalc,   Goods   of 321,   322,  347 

Hufkvalc,  Re   311,  .321 

Hudnall  v.  Ilam 424 

Hudson    V.    Hudson 453 

V.   HuRhnn    140 

HiifTirian    v.    Yoimf;.." 516 

JIu^'Ik-h    v.    Fit/gfiald 009 

Hh^Ik-h    v.     Ihij,'liPH .').33.  600 

V.  .MiM-fMlitli 245,  247 

V.  Miirthtt 229,  236 


Hughes  V.  Rader 

V.  Turner 449, 

V.  Wells 

Hughes,   Goods  of 

Huglies,    Re    

Hughey    v.    Warner 

Hugo,   Goods   of 

Hulett's    Estate    

Hull's   Will 174,   327,   344, 

Hulse's  Will 

Hultz    V.    Holzbach 

Humble    v.    Shore     

Humes    v.    McFarlane 

Hunt,   Goods   of 

Hunt    V.    Hunt 

V.  Hunt 265,  311, 

V.  Johnson  

V.  Lowell  Gas  Light  Co 

V.  White 

Hunt,    Re     

Hunt's    Will    

Huntington    v.    Huntington 

Hurd   V.   Reed 

Hurdle   v.   Outlaw 

Hurleston    v.    Corbett 

Hursey    v.    Surles 

Huss's  Appeal   

Hussey  v.  Berkley 533, 

Huston    V.    Bell 

V.    Cone     

V.  Dodge   

Huston's  Estate  

Hutchins    v.    Cockran 

Hutchinson  v.  Hutchinson.  .  .146, 

162, 

Hutchinson,    Ro    

Huxford  V.  Mulligan 

Hyde    v.    Mason 

V.  Parrat 

V.  Price   

Hyde  v.  Rainey 470,  507, 

llylton    V.    Hylton 382, 


Sec. 
238 
570 
64 
311 
271 
57 
460 
425 
346 
326 

562a 
519 
28 
215 
584 
510 
478 
212 
220 
216 
424 
378 
233 
510 
98 
453 
247 
534 
141 
57 

492a 
68 
320 
149 
480 
595 
564 
398 
558 
579 
561 
387 


Ide  V.  Tdc 559 

Iddings    V.    Iddings 218 


TABLE    OF    CASES    IN    VOL.    I. 


Iv 


See  also   Table   of   Cases   in    Volume   II. 


Seo. 
Incorporated     Society     v.     Rich- 
ards    24 

Ingersoll's   Will    610 

Ingilby  v.  Amcotts 28 

Ingles    V.    McCook 535 

Inglehart    v.    Inglehart 24,  491 

Inglesant   v.    Inglesant 321,  329 

Inglis  V,  Sailors'  Snug  Harbor..  592a 

Ingraham  v.  Ingraham     ....562,  610 

Ingram  v.  Girard 28 

V.  Porter 265 

V.  Smith 542 

V.  Southern    534 

Innes    v.    Sayer 589 

Iredell    v.    Iredell 531 

Ireland  v.  Parmenter 511 

Irish   V.  Newell 72,  116 

Ironside   v.   Ironside 472 

Irvine   v.   Irvine 604 

Irvine's    Estate    328 

Irving   V.   Bruen 197 

Irving's   Appeal    543 

Irwin    V.    Laffin 168 

Isaac  V.  Hughes 534 

Israeli    v.    Rodon 425 

Ives   V.   Harris 487 

Izard   V.   Middleton 454 

J. 

Jacks  V.  Henderson 425 

Jackson  v.  Adams 35 

V.  Alsop 580 

V.  Bennett 371 

V.  Bull 559 

V.  Delaney   495,  510,  550 

V.  Denniston   351 

V.  Hardin 70 

V.  Hewlett 403 

V.  Holoway    ..384,  393,  431,  432 

434 

V.  Hooven 468 

T.  Hurlock 444 

V.  Jackson  244,  306,  326,  328,  426 

V.  Kipp 468,   470,  545 

V.  Kniffen    193,  221,  242,  243 

382,  403 

T.  Merrill   510 


Jackson  v.  Moore 342 

V.  Payne   220 

v.  Phillips 21 

V.  Potter 445 

V.  Sill 578 

V.  Vanderspreigle 506 

V.  Van  Dusen 187,  189,  303 

V.  Westervelt 605 

Jackson's  Will    239 

Jacobs  V.  Ditz 579,  599 

V.  Jacobs 542 

V.  Prescott 472 

Jacob's    Appeal     522 

Jacob's  Succession 188 

Jacob's  Will    332 

James    v.    Dean 486 

V.  Langdon    74,  159 

V.  Marvin 415 

V.  Richardson 548 

V.  Shrimpton 446 

Jamisen's  Will    116 

Jansen  v.  Jansen 447 

Jeanes's    Estate    354 

Jenckes    v.    Smithfield 190 

Jencks   v.   Court   of   Probate ....  232 

Jenkins    v.    Bonsai 28,  563 

V.  Freyer    529,  532 

V.  Gaisford 303 

V.  Maxwell 487 

Jenkins,    Re     450 

Jenkins's    Will     255,  303 

Jenner    v.    Finch 340,  423 

Jennings   v.    Conboy .549 

Jersey    v.    Jersey 298a 

Jesse   v.   Parker 330 

Jesson   V.   Wright 464,  553 

Jobson,    Re    546 

Jodrel,    Re     481,  538 

Johns  Hopkins  Univ.  v.  Pinckney 

406,  407,  437 

Johnson   v.   Ball 281 

V.  Brailsford    .393,   394,   398,  420 

v.  Brasington    490,  542 

Johnson    v.    Farrell 68,  228 

V.    Glassock    370,    371 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Johnson  v.  Johnson 159,  268,  291 

327,  560 

V.  Lyford     243 

V.  Moore   159 

V.  Sharp 57 

V.  Stanton    524 

V.  Warren    604 

V.  Williams 11 

V.  Yancey      265 

Johnson's    Appeal    534 

Johnson's   Estate    230 

Johnson's  Will  ....239,  384,  402,  403 

Johnston  v.  Hughes 21a 

V.  Johnston 425 

Joiner    v.    Joiner 437 

Jones    V.    Bacon 558 

V.  Badley    586 

V.  Brown 63 

V.  Grogan 215 

V.  Habersham  218,   284,   337,  354 

V.  Hartley 449 

Jones   V.    Collins 174,  184 

V.  Huntley 28 

V.Jones 233,    537a,    559,  603 

V.  Larabee   350,  354 

V.  Moseley    382 

V.  Newman    573 

V.  Nicholay 269,  273 

V.  Quattlebaum 575 

V.  Roberts 178 

V.  Shewmaker 487 

V.  Skinner 496 

V.  Tebbetts    352,   353,  356 

V.  Tuck 342 

V.  Williams 21 

Jones's    Estate     426a 

Jordan    v.    Adams 553 

V.  Jordan    281,  283 

Jordan,    Goods    of 297 

Jordan's    Administrator    268 

Josh     V.    Josli 501 

Jonrneay's    Will    238,  450 

Jiibbor   V.   Jubbcr 592,  596 

Julke    V.    Adiim 126,  191 

Jull    V.    Jacobs 520 


Kahn    v.    Tierney 469,    477, 

Kahn's    Will    

Karsten  v.  Karsten  468,  470,  581 

Kaufman   v.    Caughman 20, 

243, 

Kaufman's  Estate   

Kay    V.    Holloway 

Kayhart   v.   Whitehead 

Keagle    v.    Bessell 

Keagle  v.  Pessell 

Kean    v.    Roe 

Keay  v.  Boulton 

I  Keays   v.   McDonnell. .  .173,   176, 

I  Keegan's  Estate   

j  Keeler  v.  Trust  Co.  268a,  277a, 

I 

:  Keeler's   Will    

Keely  v.  Moore 110,  207, 

I  Keen   v.  Keen 

j  Kehol,  Goods  of 

■  Keigwin    v.    Keigwin 

j  Keith    V.    Lothrop 

Keith    V.    Miller 62, 

V.  Scales   

Kell    V.    Charmer 

[Kelleher   v.    Kernan 267,   276, 

•  Kelley    v.    Shimer 

V.  Snow 19, 

Kellan   v.   Kellan 

Kelick,    Re     

Kellum,    Re     

Kelly  V.  Johnson 

V.  Miller   

Kelly  V.  Nichols 

V.   Powlett    

Kelly  V.  Richardson 

V.    Settcgast    

Kelly's    Estate    440a, 

Kemble  v.   Church 

Kempf's    Appeal     

Kempsey    v.    IMcGinniss    78,    174, 

204,  20.^,  206,  207,  208,  209, 
Kendall   v.  Clapp 

V.   F\ondall 508, 

V.  Taylor    


489 
120 
582 
198 
328 
77 
126 
605 
453a 
427a 
540 
547 
179 
239 
281 
573 
168 
344 
403 
281 
321 
207 
460 
592 
582 
288 
290 
268 
487 
239 
341 
347 
404 
168 
21 
512 
26S 
247 
448 
105 
512 
184 
212 
549 
558 
492a 


TABLE    OF    CASES    IN    VOL.    T. 


Ivli 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Kendrick's    Estate    147,  163 

Kenebel    v.     Scrafton 426,  534 

Kennard  v.  Kennard 562 

Kennedy    v.    Hay 489 

V.  Upshaw 215,  241,  317a 

Kennedy  v.  Kennedy 21,  592 

Kennell   v.   Abbott 224,  410 

Kennett    v,    Kidd 24 

Kent  V.  Barker 20,  426,  534 

V.  Mahaflfey 382 

Kern    v.    Kern 412,  415 

Kerr  v.  Lunsford    ....67,   68,   72,  84 

194,    207,  229 

V.   Moon    491 

Kessinger   v.   Kessinger 236 

Ketchum    v.    Stearns 232 

Keuhle    v.    Zimmer 477 

Kilborn's   Estate    239,   245,  246 

Kilby  V.  Godwin 63 

Kilvert's    Trusts    583 

Kimball  v.  Ellison 29 

V.Bible    Society     491,  526 

V.  Story 537 

Kimpton,   Goods  of 311 

Kindberg's    Will     245 

King  V.  Ackerman  479,  482,  483,  569 

V.  Badeley 587 

V.  Cleveland 544 

V.  George 514 

V.  Gilson 81 

V.  Kinsey 317 

V.  Mashiter '. 582 

V.  Melling 466 

V.  Mitchell 545,  608 

V.  Parker 24 

T.  Savage 535,  539,  554 

King,  Goods  of 392 

King's    Estate     529 

King's    Mortgage,    Re 504 

Kingsbury  v.  Whitaker 78 

Kindleside    v.    Harrison Ill,  132 

136,   137,   139,   142,  229 

Kinne  v.  Kinne 67 

Kip  V.  Cortland 521 

Kirkpatrick,   Re    397,  430 

Kirkpatrick  v.  Jenkins 243,  382 


Sec. 

Kirsher   v.   Kirsher 84 

Kise   V.   Heath 239 

River    v.    Oldfield 417,  437 

Klingman  v.  Gilbert 488a 

Klinger's    Will    350 

Knapen's    Will    394 

Knight    V.    Boughton 595 

V.  Broughton 263 

V.  Ellis 557 

V.  Knight 595,  560 

V.  Mahoney 603 

V.  Selby 484 

Knight,   Re    494 

Knight's  Estate    149 

Knotts    V.    Stearns 20,  426 

Knox    V.    Hotham 596 

V.  Jones 491 

Knox   V.   Richards 374 

Knox's   Appeal    174 

Knox's  Estate 56,  258,  263,  303 

Knox's  Will    193,  194 

Koebl  V.  Haumesser 453 

Koegel  V.   Egner 120,  127 

Knye  v.  Moore 534 

Kohn's    Estate 261,   301,  443 

Kopmeier,  Re 11 

Kountz's    Estate     562 

Kramer  v.  Weinert 70 

Krimpe  v.   Coons 358 

Kurtz   v.   Saylor 11,   46,  49 


La  Bua  v.  Vanderbilt.  .168,  192,  193 

243 

Lackland    v.    Downing 539 

Ladd   V.   Harvey 5,  513 

V.    Ladd    579 

Laird    v.    Vila 453 

Lallerstedt  v.  Jennings 5 

Lally's    Will     426,  489 

Lamar  v.   Lamar 602 

Lamb  v.   Girtman 239,   342,  386 

V.  Lamb 77 

v.  Lippincott 246 

Lambe  v.  Eames 595,  596 

Lambell  v.  Lambell 401,  407 


Iviii 


TABLE    OF    CASES    IX    VOL.    I. 


See  also   Table   of  Cases   in   Volume   II. 


Lambert   v.   Paine 

Lancaster   v.   Alden 163,   238, 

V.  Lancaster 

Lancaster,  Goods  of 

Lane   v.    Hill 415, 

V.  Lane 326, 

V.  Vicks    

Lane's   Appeal    

Lane's  Estate    

Langdon  v.  Aster..  11,  281,  449, 

Langford's  Estate   193, 

Lansing  v.  Haynes 

Larabee   v.    Larabee 

Larkins  v.  Larkins 391, 

Latham  v.  Udell 

Latbrop  v.  Merrill 510, 

Lauer  v.  Hoffman 

Laughlin  v.  Norcioss 

Laughton  v.   Atkins ....  406,  407, 
419, 

Lauman  v.  Foster 

Lautenshlager,    Re    

Law    V.    Douglass 

V.    Law  

Lawrence   v.    Barrett 

V.  Cooke   

V.   Phillipps    

V.  Smith 473, 

V.  Steele   

Lawson   v.   Mullinix 

Lawyer  v.   Smith 401, 

Lay's  Goods    

Laycroft    v.    Simmons 

Layman  v.  Conrey 228,  229, 

Leach  v.  Burr 

Leake  v.  Robinson 27,  519, 

Leard    v.    Askew 

Leathers    v.    Gray 

V.   Greenacre..265,  266,  366, 

Leatherwood  v.  Sullivan 

Lcavfins  v.  Butler 

Lechmere    v.    Brotheridge 

Lockey   v.   Cunningham.  .81,   12.'), 

Lee  V.  Baird 

V.  Br'iiiiftt -19, 


Sec. 
484 
239 
159 
297 
437 
328 
468 
327 
494 
459 
236 
426 
407 
397 
225 
606 
554': 
28' 
418 
420 
513 
268 
549 
397 
63 
595 
533 
479 
89a 
4.53 
403 
367 
387 
239 
184 
562 
432 
556 
367 
378 
.347 
468 
52 
101 
540 
58 


Sec. 

Lee  V.  Case 127 

V.  Colston    248,  605 

V.  Dill    238 

V.  Pain 529,  577,  583 

V.  Pindle    487 

V.  Scudder 160 

Lee's  Appeal    453 

Lee's    Goods    347 

Leech   v.   Leech 159,  168 

Legare  v.  Ashe 412 

Leeg  V.  Myer 70,  113,  118 

Leege   v.    Asgill 505 

Lehre's  Will    602 

Leigh  V.  Leigh 529 

Leigh's    Goods    385 

V.   Savidge    490 

Leighton    v.    Bailey 511,  522 

Leland   v.   Adams 484,  550 

Lemage  v.  Goodban 407,  437 

Lemann    v.    Bonsall 218 

Leny    v.    Prescott 562 

Leonard,  Ex  parte   308,  329,  342 

Leonard    v.    Leonard 268,  397 

Lepage  v.  McNamara 473 

LeRoy,  Ex  parte 339 

Letchworth's    Appeal     563 

Leverett    v.    Carlisle 227 

Leverington's  Goods    339 

Levy's    Estate    505 

Lewin    v.    Killey 564 

Lewis  V.  Douglass 57S 

V.  .Jones 81,  125,  191 

V.  Lewis   .  98,  284,  323,  325,  326 

339,  342,  347 

V.  Payne  491 

V.   Scofield    4.57 

Lewis,  Re   138,  188,  380 

Lewis's   Estate    77 

Lewis's  Will  68,  73,  118,  186 

Ley    V.    Ley 478 

Lide  V.   Lide 2,36 

Lillie  V.  Lillip 402 

Lincoln    v.    Aldrich 542 

V.    Pclliam    540 

V.  Perry 469 

Lindsay,    Ex    parte 286,  288 


TABLE    OF    CASES    IN    VOL.    I. 


]ix 


See  also   Table   of   Cases   in   Voluino    II. 


Sec. 

Lindsay's  Estate   68 

Lindsey    v.    Colyear 551 

V.  Lindsey 599 

Linnard's   Appeal    431,  450 

Linebarger  v.  Linebarger. .  .  .242,  243 

Linstead    v.    Greene 477 

Lipe  V.   Houck 453a 

Lisle   V.    Couchman     239 

List  V.  Rodney 553 

Lister  v.  Bradley 562 

V.  Smith 216,  278 

Liston  V.  Jenkins 477 

Little  V.  Little 187 

Little,  Re  19 

Livingston  v.  Commonwealth....  205 

Livingston's  Appeal   170,  239 

Lloyd  V.  Branton 599,  603 

V.  Jackson    549 

Locke   V.   Dunlap 529 

V.  Locke   537 

Lockwood's  Appeal    540 

Lockwood's   Will    161 

Loder   v.   Whelpley 245 

Logan   V.   McGinnis 198 

Loenecker's    Will     240 

Lomax    v.    Lomax 574 

V.  Shinn 488 

Lombard    v.    Boyden 519 

Lombe    v.    Stoughton 500 

Long  V.   Aldred 59,  424,  446 

V.  Blackall   544 

Long  V.  Zook 310 

Long's   Appeal    257 

Long's  Estate   562a 

Longford  v.  Eyre 340 

Loomer    v.    Loom^r 466 

Lord   V.   Bourne 542 

v.   Lord 331,  339,   350,  353 

Lord  V.  Pearson 562a,  565a 

Lord  St.  Helens  v.  Lady  Exeter.  216 

Lord    Donegal's    Case 225 

Lorillard,  Re   486 

Loring  v.  Arnold 28 

V.  Loring 595,  596 

v.  Park 354 

Lorings  v.  Marsh 426,  585 


Src- 

Lorton  v.  Woodward 507 

Louge    v.    Wilkie 491 

Loughney  v.  Loughney 201 

Love    V.    Buchanan 542 

v.   Johnston    44.5 

Lovegrove,  Goods  of 456 

Lovell  V.  Quitman 397 

Loveren  v.  Lamprey 29 

Lovering    v.    Balch 409 

Low    V.    Harmony 533 

V.  Huntingtower 579 

V.  -Joliflfe    179,  .351 

V.  Manners 579 

Lowe  V.  Williamson 96,  137,  230 

235 

Lowman,    Re     565 

Lowry   v.   Muldrow 489 

Loy    V.    McClister 604 

Lucas  V.  Brooks 281,  570 

V.   Duffield    474 

V.  Parsons  81,  110,  159,  161,  189 

242,    268,  298 

Ludlam,  Re    64 

Ludlow  V.   Ludlow 325,  326 

V.   Stevenson    519 

Ludlum   V.   Otis 406 

Lumb  V.  Jenkins 36 

Lumbell  v.  Lumbell 391 

Lumber    Co.   v.    Branch 328 

V.    Rogers     494 

Lummus  v.  Mitchell 483 

Lungren  v.  Swartzwelder 268 

Luning  v.  State 210 

Luper  V.  Werts 325 

Lupton,  Re  600 

Lurie    v.    Radnitzer 429,  480 

Luzar   v.   Harman 540 

Lyles   V.   Lyles 272 

Lyman   v.   Morse 487 

Lyne  v.  Guardian 223 

Lyon  V.  Acker 539 

V.  Baker    533 

V.  Dada 245,  246,  418 

V.  Home 168 

V.  Lyon 517 

V.   Safe   Deposit    C<i 476,  5Ci 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


Skc. 

Lyon's  Will   424  1 

Lyons  v.  Campbell 247 

Ly saght   v.    Edwards 28  j 

Lytle  V.  Beveridge 583 

M. 

Maas  V.  Sheffield 48 

MacduflF,    Re    21 

Mackay's  Will    326 

Mackenzie's   Estate    382,  403 

Mackie    v.    Story 569 

Macy  V.  Sawyer 561 

Maddock,   Goods   of 333,  345 

Maddox  V.  Maddox 603 

V.  Yoe   603 

Madison  v.  Larmon 554 

Madison  v.  Alderson 453 

Magee  v.   O'Neill 604 

Magnus  v.  Magnus 281 

Magoohan's  Appeal  512 

Main    v.    Ryder 229 

Main's  Appeal 26Sa 

Mairs  v.  Freeman   76,  113,  226 

iMaitland  v.  Charlie 564 

Major    V.    Williams 414,  443 

Major's    Appeal    453 

Malcom  v.  Martin 541 

Male's  Will 378 

Maley'9   Goods    389 

Malin  v.  Malin 28 

Malone  v.  Hobbs 386 

!Mandi"lbaum  v.  McDonnell 602 

Mandeville  v.  Parker 342 

Miiniere  v.  Welling 565a,  611 

IVfann   v.  .Tackson 603 

!Mann   v.  Mann 578 

V.  Thompson    529 

Mannox   v.    Greener 503,  507 

Mfinsfleld    v.    Slielton 560 

Marcli    V.    Huyter 456 

V.    Marchant    437 

!Margary    v.    Robinson 311 

Miirfritson,    Re    440 

^Iiirklc's    EHtate    474,  523 

Marks  v.  Bryant 372 

MarHdon,   Re    2(;;» 


Sec. 

Marsh  v.  Marsh    ..284,  314,  337,  398 

415,    443,    446,  544 

V.    Tyrrell 60,    83,  237 

Marshall  v.  Berry 63 

V.   Clause    562a 

V.  Conrad   35 

V.  Flinn    227,  238 

Marshall's  Appeal    579 

Martson   v.  Fox 28,   425,  426 

Marston  v.  Marston 599 

V.    Norton    59 

Marston,    Ex    parte 354 

Martin  v.  Beatty 200,  232 

V.  Bowdern   21a,  126 

V.    Hamblin    314 

V.  Hobson   505 

V.  King 435 

V.  Kirby 565 

V.  Laverton 495 

V.  Mitchell 98,  317 

V.  Osborne 518a 

V.  Perkins 178 

V.  Seigler 603 

V.  Smith  .  ,   ..475,  495,  514,  516 

566,  574 

V.  Teague 231,  23S 

V.  Thayer    68,  77 

Martin,    Goods    of 53,  287 

Martin,  Re   53 

Martin's  Will    ....141,   174,  238,  348 

Martindale's    Will     281,  337 

Martins   v.    Gardiner 397,  4,30 

Marx  V.  McGly.nn.  .  193,  228,  229,  238 

239,  240,  243,  246,  348 

Mason    v.    Bateson 584 

V.  Bishop    347 

V.  General   Hospital    537a 

V.  Harrison    342 

V.  Hospital 488a,  574 

V.  Robinson 594 

V.  R.    L    Trust    Co 606 

V.  Williams 235 

Mason's  Will,  Re 504,  505 

Massey's  Appeal    521 

Masseth's    Estate    317 


TAULE    OF    CASES    IN    VOL.    I. 


Ixi 


See  also  Table  of  Cases  in  Volume  II. 


Si.:c. 

Masterman  v.  Maberly  265,  276,  280 

407 

Masters  v.  Masters 260 

Masterson  v.  Townshend '  561 

jNIastyn   v.   Mastyn 594 

Mather's    Will    232 

Matthews  v.   Warner 318 

Matthias,    Goods    of 281 

Maurer   v.  Reif Schneider 365 

Maverick  v.   Reynolds.  .136,   137,  138 

Maxcy    v.    Oshkosh 469 

Maxwell  v.  Call 535 

V.  Hill   358 

May  V.  Bradlee 193,  198,  199 

V.   Graves    505 

T.  Sherrard 427,  477 

V.  Thomas 16a 

Mayd,  Goods  of 287 

Maynard  v.  Tyler 159,  236 

V.  Vinton    342 

Mayott   V.   Mayott 536 

McAdam  V.  Walker 112,  113 

McAllister  v.  Gale 549 

V.Hayes    472,  595 

McAnnulty  v.  McAnnulty 424 

McBride's   Estate    56,  57 

McBride   v.  McBride 386 

McCarn    v.    Rundall 387 

McCartee  v.  Orphans'  Asylum...  24 

McCarty  v.  Fish 562 

V.  Waterman   257 

McClanahan  v.  McClanahan 460 

McOlary    v.    Hull 168 

McCloskey  v.   Tierney 272 

McClure,   Re    549 

V.  McClure 22,  229,  236,  415 

McConnell   v.   Woodworth 239 

McCoon   V.   Allen 68 

McCourt    V.    Peppard 268a 

McCoy  V.  Jordan 185 

V.  McCoy  239 

V.   Sheehy    68,  72 

McCravey  v.  Otto 602 

McCulloch  V.  Campbell 174 

McCulloch's    Appeal    20 

McCune  v.  Baker 507 

V.  House   379,  381 


feEC. 

McCurdy  v.  McCallum 595 

V.  Neall    347,  448 

McDaniel  v.  Crosby 229 

V.  Hays  553a 

McDonald  v.  McDonald     403 

McDonouf^h  v.  Murdock 468 

McDougald  v.  Low 522 

McElf resh  v.  Guard 342 

McElwaine  v.  Congregational  Soc.  600 

McEhvaine,  Re 253,  303,  306,  308 

McEnroe  v.  McEnroe 245 

McFadin   v.    Catron 229,  235 

McFarland  c.  McFarland 599 

McFillen's   Estate    563 

McGauly    v.    McGauly 437 

McGee  v.  Porter 306,  308 

McGehee   v.  McGehee 502 

McGinnis   v.   Kempsey 174 

McGough  V.  Hughes 579 

McGuire    v.    Gallagher 468 

v.  Kerr    310,  312,  342 

McHugh    V.    McCole 21,    597,  610 

IMcIntire  v.  Mclntire  384,  385,  432,  434 

]McIntosh  V.  City  of  Charleston.  24 

Mcintosh's  Estate   47 

Mclntyre   v.   Ramsey 551 

McKeegan  v.  O'Neill 453 

McKeen    v.    Frost 358 

McKennon  v.  McKennon 277a 

McKeough  v.  McKeough 502 

McKinn  v.  Harwood 559 

McKinnon  v.  Thompson 28 

McLaughlin's   Will    246 

McLean    v.    Barnard 354 

McLeod  V.  Dell 365 

v.  Jones    583 

V.    McNab    443 

McMahon  v.  Ryan 232 

McMasters  v.  Blair 187 

McMichael    v.    Pye 533 

McNamara  v.  Michigan  Trust  Co.  453 

McNaughton  v.  IMcNaughton 29 

M'Naghten's  Case   210,  212 

M'Neiledge  v.  Barclay 537 

v.  Galbraith 537 

McNinch  v.  Charles 193 

McNitt'3  Estate 174,  227 


Ixn 


TABLE    OF    CASES    IN    VOL. 


See  also   Table  of   Cases   in   Volume   II. 


Sec. 

McPherson  v.  Clark 397 

V.  Snowdon 535 

McQueen    v.    Wilson 24G 

McEee  v.  Means 263 

McSorley    v.    McSorley 125,  128 

McTaggart    v.    Thompson 67,  193 

Meade's  Estate   294 

Mealing  v.  Pace 265 

Means  v.  Evans 486 

V.   Moore    393,  397 

Meares  v.  Meares 532 

Meck's  Appeal  268,  274 

Medill  V.  Snyder 145 

Meek    v.    Perry 246 

Meeker  v.  Draffen 535a 

V.  Meeker.. 67,  70,  201,  211,  236 

Megary's   Estate    268 

Meir    v.    Butchter 239 

Melanefy  v.  Morrison 242 

Mellish  V.  Mellish 220 

Mellor    V.    Daintree 220,  477 

Meluish   v.   Milton 223,  224 

Melvin  v.  Easley 210 

Mence  v.  Mence...258,  391,   397,  430 

Mendell   v.   Dunbar 342 

Mendenhall  v.  Tungate 140 

Mendinhall's  Appeal   427a 

Mercer  v.   Mackin  348,  353,  402,  423 

Merrill  v.  Rolston 146,  159,  161 

V   Rush    132,  138 

V.  Wisconsin  Female  College  599 

Meredith   v.  Heneage 595 

Merriman  v.   Merriman 174 

Messner  v.  Elliott 193 

Metcalf   V.   Framingham   Parish.  477 

V.    Sweeney    566 

Metcalfe  v.  Metcalfe 606 

Methodist  Church  v.  Young 28 

Methuen     v.    Methuen 423 

Meurer'8  Will    ....326,  329,  342,  347 

Meyer    v.    Cahen 478 

Meyer,    Re     294 

Meyer's    Estate     215 

Miars   v.   Bedfjood 262 

Michael   v.   Baker 57,  265 

MiddlctOD    V.    Steward 57 


Sep. 

Middleton's   Will    299 

Mifflin's   Estate    564a 

Milburn    v.    Milburn 426 

Miles,    Re     397 

Miles    V.    Boyden 449 

Millard's  Appeal 558 

Middleditch   v.   Williams 162,  168 

243,  251 

Miller  v.  Brown 59,  318..  446,  449 

V.  Buchanan 407 

V.  Hart 555 

V.  Holt 268,  273,  274 

V.  Keegan 560 

V.  McNeill 328 

V.  Metcalf 544 

V.  Miller 229,  297 

T.  Phillips 424 

V.  Travers  .   .  .573,  574,  575,  576 

577,  578,  579,  584 

V.  White   152,  161 

Miller,  Re  505 

Miller's    Appeal    534 

Miller's    Estate    243 

Miller's    Will     603 

Millican   v.   Millican 265 

Milligan,  Goods  of 366 

Mills    V.    Millward 387 

Milnes  v.  Foden 269 

Miltenberger    v.    Miltenberger . .  .  259 

353,  358 

Minkler  v.  Minkler 402 

Minkler  v.   Simons 489,  490 

Minot  V.  Prescott 599 

V.    Tappan    563 

Minuse    v.    Cox 29 

Miskelly,  Re    297 

Mitchell    V.    Donohue 317 

Mitchell    V.    Holder 57 

V.  Mitchell 216,   325,   326,  529 

V.  Vickers 375,   376,  377 

Mitchell's  Estate 238,  595 

Moale  V.  Cutting 335 

V.  Moale   32Sr 

Moehring,   Re    557 

Moehring  v.  Thayer 57 

MofTett   V.   Elmendorf 481a,  566 


TABLE    OF    CASES    IN    VOL.    I. 


Ixiii 


See  also  Table  of  Cases  In  Volume  II. 


Sec. 

Moffett    V.    Moffett 365 

Moffit    V.    Varden 480 

Mohun    V.    Mohun 592 

Moinsett    v.    Stevens 554 

Molineaux  v.  Raynolda 522 

Monkhouse  v.  Holme 562 

Monroe    v.    Barclay 218,  236 

Montefiore   v.   Montefiore 77,  266 

Montgomery   v.   Dorion 35 

Monypenny  v.  Bristow 449,  487 

Moodie   v.   Reid 326 

Mooers    v.    White 35 

Moon  V.  Stewart 464 

Mooney  v.  Evans 512 

Moor   V.   Raisbeck 533 

Moore  v.   Blauvelt 230,  232,  235 

V.  Cleghorn 484 

V.  Dimond 530 

V.  King 327,  328,  338 

V.  Little 563 

V.  Lyons  .  .   565 

V.  McDonald 242,  243 

V.  Moore 43,  97,  247 

317,    391,    413,  508 

V.  Powell 502 

V.  Spier 246 

Moore,   Re    336,   347,   599,  604 

Moore's    Estate..  119,    466,    481a,  510 

Moore's    Will     415 

Mordecai  v.  Canty 174,  239 

Morere's    Succession    186 

Moreland    v.    Brady 518,  574 

Morey   v.   Hoitt 419 

T.    Sohier    427 

Morgan  v.  Boys 150 

Morgan  v.  Cliristian 603 

V.    Davenpart     426 

V.  Morgan 573,  577 

Morgan's  Goods 269,  272,  276,  280 

Morgan's  Estate 77 

Morice    v.    Dunham 595 

Moritz  V.  Brough 193,  236 

Morley,    Re    495 

V.    Rennoldson     487 

Morley's  Will    325 

liorrall    v.    Sutton 571 


Sec. 

Morrell    v.    Dickey 265 

V.  Fisher    516,  518 

V.  Morrell  .   .  .  .219,  248,  250,  434 

Morris  v.  Burroughs 605 

V.   Stokes    218,   219,  229,  244 

245,  248 

V.  Henderson   510 

Morrison  v.  Bartlett 274 

V.  Thoman 223,  237 

V.  Truly    474a 

Morritt    v.    Douglas 321 

Morrow's  Appeal   289 

Morrow's  Estate 10 

Morse    v.    Crawford 203 

V.  Hayden 599 

V.  Mason 529 

V.  Morse 426 

V.  Scott    149,  150 

V.  Thompson 60 

Mortimer    v.    Potter 513 

V.  Slater   563 

Morton    v.    Barrett 548 

V.  Heidorn 239 

V.  Ingram 351 

V.  Onion 424 

V.  Perry 505 

V.  Woodbury   475,  488,  522 

Morton,   Goods   of 294 

Morton's   Goods    389 

Mosley    v.    Carr 402 

Mosser  v.  Fiske 468 

V.    Mosser    265 

Mostyn    v.    Mostyn 594 

Mounsey  v.  Blamire. .  .  .547,  548,  570 

Mountain  V.  Bennet 221,229,  236 

Mowatt  V.  Carrow 565 

Mowrey  v.  Norman 246 

Mudway  v.  Croft 145 

Mueller  v.  Batcheler 454 

V.   Buenger    468,  470 

V.  Pew   228 

Muh's  Succession    394 

Mulholland  v.  Gillan 297 

Mullen  V.  Helderman 236 

V.  McKelvy    11 

Mulliken  v.  Earnshaw 470 


Ixiv 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in   Volume  II. 


Mullin,  Re    

MuUins    V.    Cottrell 

Mullock  V.  Sender 

MulvaBC    V.    Rude 473, 

549,   557, 

Munday    y.    Taylor 77, 

Mundy  v.  Mundy..326,  386,  387, 

Mundy's    Goods     262,    269, 

Munhall's   Estate    306, 

Murfleld's   Will    281, 

Murphey    v.    Brown 

Murphey    v.    Fogg 

V.    Gabbert     

V.  Murphey   

Murphey's  Estate    72,   110, 

Murray  v.  Murphy 

V.  Murray   

ISIurtha  v.  Donohoo 453, 

]Musser    v.    Curry 

Mutter's  Estate    

Myers's   Appeal    

Myers  v  Anderson 

V.  Cronk 

V.  Myers 

V.  Vanderbelt 


N. 

Nagle    V.    Conard 

Nash  V.  Hunt 

V.  Reed    

Naylor    v.    McRuer 

Neal  V.  Hamilton  Ck) 477, 

Kedby  v.  Nedby 60, 

Necdham  v.  Ide 470, 

Xeel    V.   Potter 

Neflf's  Appeal    447, 

Nfgus  V.  Negus 

Neide    v.    Neide 

Neiheisel    v.    Toerge 

Neil    V.    Neil 

Neilson   v.   Bishop 

Nelson  v.  Blue 

V.  McOifTert   

V.  Pomeroy 


V.   I'nhlie    Admr 405, 


fcJEC. 

203 
190 
11 
483 
600 
188 
395 
279 
371 
448 
489 
354 
268 
246 
280 
344 
355 
454 
443 
473 
557 
554 
454 
529 
258 


490 
199 
353 
126 
566 
237 
478 
243 
449 
426 
483 
348 
342 
562 
542 
412 
501 
418 


Nelson's    Will    243,  329 

N.  E.  Trust  Co.  v.  Eaton 223 

Nevins  v.  Gourley 599 

Newburgh's    Case    584 

Newburgh    v.    Newburgh.  .  .  .568,  575 

Newcorabe   v.   Ostrander 498 

Newcomb  v.   Webster 407,  438 

Newhouse    v.    Godwin 229 

Newlin   v.   Freeman 49,  57 

Newsome  v.  Bowyer 53 

Newton  v.  Carberry 227 

\.   Clarke    341 

V.   Marsden    603 

V.  Newton 453 

V.  Seaman's  Friend  Society.  281 

Newton's  Trusts 542 

Nicewander  v.  Nicewander 236 

Nicholas    v.    Kershner 77,  188 

Nichols  V.  Allen 29,  486 

V.  Binns 75,   110,  112 

V.  Butcher 484,  550 

V.  Chandler 268,  274 

V.  Eaton 606 

V.  Nicholas 278 

Nickell  V.  Handy 606 

Nicoll  V.  Irby 480 

Nichols,    Re    185 

Nickerson     v.    Bowly 561 

V.  Buck   303 

Nightingale   v.   Burrell 555 

V.  Sheldon  466,  467,  468,  470,  480 

Nightingale,   Re    566 

Nixon   V.  Armstrong 23,  357 

V.    Snellbaker    324 

Noble   V.    Enos 56 

Nock  V.  Nock 342 

Nockolds   V.    Locke 541 

Nokes'    Estate    404 

Noon's    Will     415 

Norman   v.   Morrell 582 

Norris   v.   Cliambers 33 

North    V.   Martin 559 

North,    Re     293,  387 

Northern's  Estate,  Re   527,  576 

Northrop   v.    Lumber    Co 572 

V.    Troup     486 

J  Northrup's   Will    513 


TABLE    OF    CASES    IN    VOL.    I. 


Ixv 


See  also  Table  of  Cases  in  Volume  IL 


Norton    v.    Bazctt 341 

V.  Clark   ..70,  81,  lin,  237a,  243 

V.    Paxton    230 

Nosworthy,  Goods  of 215 

Nourse    v.    Merriam 601 

Nowlin    V.    Scott 372 

Noyes    v.    Southworth 424 

Noyes's  Will   422 

Nussear  v.  Arnold 230,  236,  244 

Nye  V.   Hoyle 500 

0. 

Oats    V.    Brydon 483 

O'Brien  v.  Gallagher 328 

V.  People 200 

O'Brien's  Appeal   229,  239 

O'Dell    V.    Goflf 168,  190 

Odell  V.  Odell 21 

V.   Divine    423a 

Odenwaelder  v.   Schorr 324,  411 

Offut  V.  Offut 374,  378 

Ofner,  Re  573 

Ogden  V.  Greenleaf 248,  250 

V.   Pattee    512 

Ogden,    Re    595 

Ogle's   Estate    268 

Ogle    V.    Cook 179 

V.  Knipe    504 

O'Gorman's   Estate    510 

Old    V.    Old 353 

Oldham    v.    York 477 

Oldroyd  v.  Harvey 262,  404 

Olerick    v.    Ross 346 

Olmsted's  Estate 403,  408 

Olney  v.  Hull 560 

Olson's    Estate    226 

Ommaney    v    Bevan 565 

O'Neall   V.   Boozer 477 

V.  Farr 227,  239,  384,  386,     399 

406,  418,  448 

O'Neil  V.  Murray 243 

O'Neill  V.  O'Neill 370,  371 

O'Neil's  Will   312 

Onions  v.  Tyrer 384,  398,  417 

Opel    V.    Shoup 23 

Orford   v.   Churchill 533 


Orgain  v.  Irvine 

Orndoff   v.    Hummer 

Orr    V.    Moses 

V.   Yates    

Orser   v.   Orscr 

Orth  V.  Orth 

Osborn  v.  Cook 324,  326,  331, 

Osborn's  Appeal    

Osburn  v.  Trust  Co 397,  409, 

Osgood   V.   Bliss 

V.  Breed 

V.  Lovering 

Ostrander    v.    Davis 

Oswald    V.    Caldwell 

Oswald,    Goods   of 

V.  Kopp 

Otis  V.  Prince 

V.  Smith   

O'Neil's  Will    

O'Rourke   v.   Beard 

O'Toole    V.   Browne 

Ot jen  V.  Frobach 

Otto  V.  Doty 

Ouchterlong,  Goods  of 

Ouseley  v.  Anstruther 

Overbury  v.  Overbury 

Overheiser  v.   Lackey 

Overton  v.  Overton 

Owen   V.   Owen 

Oxford   V.   Oxford 194, 

Oxley    V.   Lane 

Owens   V.   McNally 453, 

Owston,   Goods   of 

Oxenden  v.  Chichester 575, 


P. 


Packard   v.   Packard.. 

Packer  v.  Packer 

Packer's  Estate    

Packman,  Re   

Pack  V.  Shanklin 

Page  V.  Foust 

V.  Frazer 

V.  Leapingwell.  .  . 

V.  Page 

V.  Whidden 

V.  Youns .*. 


260 
342 
478 
610 
198 
230 
346 
539 
415 
424 

57 
533 
427 
268 
219 
549 
603 
501 
312 
505 
510 
597 
168 
282 
512 
425 
566 
188 

23 
242 
473 
454 

97 
578 


483 
257 
134 
495 
465 
509 
604 
507 
365 
600 
520 


Ixvi 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


Pagley   v.   Tongue 

Paige  V.   Brooks 399, 

Paine  v.  Parsons 

V.  Forsaith   

Palmer  v.  Dunham 

V.  Owen 

V.  Palmer 

Panaud   v.   Jones 

Pandall  v.  Russell 

Parfitt  V.  Lawless 227,  236, 

Parish  v.  Ferris 

V.   Parish    

Park,  Re  

Parker  v.  Bainbridge 

V.  Briscoe 

V.  Chestnutt 503, 

V.  Cobe 

V.  Johnson 

V.  Loan  Co 

V.  Marchant 

V.  Parker 49,  522,  550, 

V.  Tootal 

V.  Wasley 

Parker,   Re    366, 

Parkin  v.  Knight 

Parkinson's  Trusts    

Parramore   v.   Taylor 

Parsons  v.  Lanoe 

V.  Parsons 

V.  Winslow 

Paske   V.   Ollat 

Passmore  v.   Passmore 263, 

Pastene  v.  Bonini 

Patten   v.   Tallman 

Patterson   v.   English 

V.  Gaines 

V.  Hickoy 401, 

V.  Patterson 

V.  Ransom 

V.  Wilson 5G8, 

Patton  V.  Allison 

V.    Randall    

Patty  V.  fJoolsby 

I'aiil  V.  Ball 

V.  (Vmipton 

V.  Sylv(!Hter7 


bEC 

64 

427a 

450 

487 
535 
284 
365 
354 
558 
246 
564 
71 
603 
431 
449 
523 
492a 
210 
513 
505 
599 
561 
468 
536 
557 
537 
323 
287 
374 
466 
245 
265 
585 
351 
272 
480 
403 
242 
345 
580 
245 
.561 
486 
,'>05 
529 
5H5 


Sec. 

Pawtucket   v.    Ballou 328 

Payne  v.  Payne 324,  344 

V.  Webb 540 

Payne,  Re    437 

Peake   v.   Jenkins 306,  320 

Pearce  v.  Rickard 535 

Pearce,  Re   534 

Pearn,  Goods  of 311 

Pease  v.  Allis 355 

Peaslee  v.  Fletcher 514 

Pearson  v.   Carlton 20 

V.   Dolman    600 

Peck  V.  Gary 78,  126,  127,  128 

191,  329 

Peck's  Appeal    412,  415 

Pemberton  v.  Pemberton 399 

V.  Parke   533 

Pemberton,  Re   243 

Pendleton's   Will    81 

Penniman   v.   French 506,  508 

Penniman's  Will.  .  .431,  432,  434,  442 

Pennock's  Estate  595 

Pennock  v.  Pennock 558 

Pennover  v.  Sheldon 469,  470 

Peusyl's  Will 229,   230,  235 

Peoria    Humane    Society   v.   Mc- 

Martrie 458a 

Pepoon's  Will    347 

Pepped  V.  Martin 174,  239 

Pepper's  Estate    515 

Perera   v.   Perera 317 

Perjue  v.   Perjue 382 

V.  George    11 

Perkins  v.  Jones 255a,  318 

V.   Perkins 141,   174,  175 

188,  238,  440 

Perkins's  Appeal    477 

Perret  v.   Perret 226,  236 

Perrin  v.  Blake 466,  553 

Perrott  v.  Perrott 398 

Perry  v.  Brc\vn 540,  599 

V.  Hunter    466 

V.  Maxwell    512 

Pcretico  v.  Hayes 268 

I'ct^'fisli  V.  Becker          161 

Peters  v.  Siders 20 


TABLE    OF    CASES    IN    VOL.    I. 


Ixvii 


See  also  Table  of  Cases  in  Volume  II. 


Peterson's  Will 

Pettes  V.  Bingham 

I'etty  V.   Wilson 

P«v'eaett's    Goods 

Phelan's  Estate 

Phelps  V.   Hartwell 

V.  Phelps    

V.  Robbins   280, 

Phillips  Academy  v.  King 

V.  Chater    

V.  Phillips   237a,  239, 

v.  Ferguson    

Piatt  V    McCullough 

Piazzi  Smith,  Re 

Pickens  v.  Davis 403, 

V.  Matthews    

Pickering  v.  Langdon .  .  476,  478, 
Phipps  V.  Ackers 

V.  Anglesea    

Pickett's    Will 98, 

Pickworth,  Re 

Picquet  v.  Swan 

Pidcock  V.  Potter.  .  .74,  159,  201, 
Pierce  v.  Knight 

V.  Pierce 126,  127,  236, 

V.  Root    

V.  Stidworthy   

Pierce's    Estate 

Piercy,    Re 

Piggott  V.  Waller 449, 

Pikington  v.  Spratt 

Pileher  v.  Hole 

Pillsbury's    Will 

Pingrey  v.  Rulon 

Pinney  v.  Hiint 

Piper  V.  Andricks 

V.  Mbulton    

Pitney  v.  Brown 

Pitts  V.  Campbell 478, 

Plane  v.  Scriven 

plater  v.  Groome 256, 

Piatt  V.  Mickle 

Plenty  v.  West 

Plimpton  V.  Plimpton 

Plumstead's  Appeal 


Skc. 

Sec. 

?M 

Pocock  v.  Reddinger 

574 

?A7 

Podmore  v.  VVhatton 

402 

505 

Pohlman  v.  Pohlman 

505 

^?.?< 

Polk  V.  Ralston 

34 

313 

Pollock  V.  Glassell 

309 

195 

V.  Greassell    

.... 

281 

564 

Pond  V.  Allen 

562 

281 

V.  Bergh    

28 

24 

Pool  V.  Blakie 

.... 

57 

163 

Poole  V.  Poole 

.... 

553 

595 

V.  Richardson    ....  199, 

201, 

203 

603 

Pooler  V.  Cristman 134, 

231, 

238 

309 

Pope  V.  Elliot 

606 

456 

V.  Hinckley    

«... 

573 

415 

V.  Pickett   

342 

531 

V.  Pope 328,  440, 

447, 

478 

487 

V.  Whitcombe    

537 

562 

Popham   V.   Bampfield 

599 

411 

V.  Lady  Ayle-'^bury .... 

509 

174 

Porcher  v.   Daniel 

..54, 

57 

562 

Porter  v.  Ford 



59 

470 

Porter,  Goods  of 

287 

203 

Porter,  Re.. 

.598, 

602 

481 

V.  Turner    

299 

242 

Porter's  Trusts.  Re 

.... 

542 

469 

Portland  v.  Prodgers 

53 

520 

Portman  v.  Hunter 

.... 

374 

422 

Post  V.  Herbert 

540 

343 

Post  V.  Mason 

.239. 

245 

487 

V.  Jackson    

540 

563 

Postlethwait's    Appeal 

.466, 

579 

409 

Poter  V.  Baldwin 

.242, 

243 

407 

V.  Couch    

602 

492a 

V.  Poter    

449 

223 

Potter's  Will 

243 

242 

Potts  V.  Felton 

335 

356 

V.  House 78,  95, 

205, 

227 

540 

Powell  V.  Beebe 

.476, 

498 

599 

v.  Board  of  Missions.. 

554 

328 

V.  Rawle    

600 

265 

V.  State    

.... 

203 

543 

Powers'    Estate 

21 

407 

Prater  v.  Prater 

4.-.  4 

483 

V.  Wliittle    

427 

265 

Prater,    Re 

.... 

512 

Ixviii 


TABLE    OF    CASES    IN    VOL.    I. 


See  also   Table   of   Cases   in   Volume   II. 


yEc. 

Pratlier  v.  McClelland. 

68 

Pratt  V.  Jackson 

512 

V  Rice    

478 

Prentis  v.  Bates 67, 

149, 

162, 

170 

Prentiss  v.  Prentiss .  . . 

426 

Prescott  V.  Prescott . .  . 

521 

Prescott,  Re 

397, 

432, 

434 

Price  V.  Lockley 

. . . . 

540 

V.  Maxwell    

. . . . 

.407, 

418 

V.  Powell    

389 

V.  Strange    

544 

Prichard  v.  Pricliard. . 

505 

Pride   v.   Bubb 

.... 

..51, 

53 

Prigden  v.  Prigden. .  . . 

331 

Prince  v.  Hazleton.  .  . . 

361, 

365, 

370 

371, 

374 

V.  Prince    

. . . . 

..62, 

458 

Prince,    Re 

213a 

Pringle  v.  Burroughs . . . 

192 

V.  McPherson    .... 

418 

Prinsep  v.  Dyce  Sombre.  . . . 

139 

Proctor  V.  Proctor 

604 

Provis  V.  Reed 

193 

Prowitt  V.   Rodman. .  . . 

533 

Pruden  v.  Pruden 

489 

Pruen  v.  Osborne 

535 

Pryor  v.   Coffin 

395 

V.  Coggin    

386 

V.  Prvor    

333 

Public  Administrator  v. 

Watts.. 

378 

Puddephate,  Goods  of.  . 

.... 

. . . . 

311 

Pugh  V.   Pugh 

.... 

. . . . 

533 

Purcell  V.  Grattan 

.... 

5-19 

V.  Wilson    

549 

Purcell's  Estate 

..70 

,  96, 

141 

Purdv   V.   Evans 

235 

Pnryf'ar  v.   Edmonson.. 

539 

Putnam  v.  Safe  Deposit  Co.. 

595 

Quwn's  Collf^e  v.  Sutton 583 

Qnincy    v.    Rogers 437,  487 

Quinn  v.  Butler 398 

V.  Quinn    432 

V.  Sliields    354 


R. 

Sec. 

Rackham  v.  Siddall 495 

Radcliffe  v.  Buckley 533 

Ragland   v.   Huntingdon 388 

Eagsdale  v.  B  loker 265 

Raikes  v.  Ward 5'J5 

Raine,  Re 459 

Raison  v.  Raison 229,  236 

Ralph  V.  Carrick 535 

Rambler  v.  Tryon 201 

Ramires   v.   Kent 35 

Ramsdill   v.   Wentworth 426 

Ramsey  v.  Ramsey 312,  313 

Rand  v.  Butler :'.! 

Rand's   Estate 255 

Randall  v.  Beatty 415 

V.  Payne   599 

V.  Russell    558 

V.  Tuchin    550 

Randall,   Re 159,  168 

Randfield  v.  Randfield 437 

Rankin  v.  Rankin 33,  23t? 

Rash  V.  Puruel 328 

Rasquin  v.  Hamersley 535 

Rathbone  v.  Dyckman 561 

Rath j  ens  v.  Merrill 174 

Raudenbach's   Appeal 4^0 

Ravenscraft  v.  Hunter 397,  430 

Rawlings   v.  Jennings 514 

V.  McRoberts    273 

Rawlins'  Trusts 481,  561 

Ray  V.  Hill 305,  317,  343 

V.  Ray    193,  240 

V.  Walton    421 

Raymond  v.  Butts 610 

V.  Wagner    342 

Rayner  v.  IMowbray 537,  563 

Read  v.  Manning 406 

V.  Snell    549 

Reagan  v.  Stanley 255.  256 

Reaver's   x\ppeal 339 

Rector  v.  Alcorn 595 

Redding  v.  Allen 518 

Bedding,  Goods  of 304,  310 

Redl, cad's    Estate 289 

Redmond  v.  Burroughs 543 


TABLE    OF    CASES    IX    VOL.    I. 


Ixix 


See  also  Table  of  Cases  In  Volume  II. 


Sec. 

Eeed  v.  Hazleton 270,  272 

V.  Roberts     342 

V.  Watson  .  .  .  .323,  325,  328,  330 

Eeed   v.   Welborn 562a 

V.  Woodward    258 

Reed's    Estate 140 

Reed's    Will 137 

Rees,  Re 563 

Reese  v.  Court  of  Probate. .  .405,  420 

V.Hawthorne    374,  378 

V.  Reese 284,  314,  337 

V.  Stille    239,  251 

V.  Waters    35 

Reeves  v.  Crosby 326,  348,  354 

Rehard's  Estate    354 

Reichard's   Appeal    409 

Reichenbach  v.  Ruddach.70,  176,  231 

Heilly  V.  Infirmary 473,  583 

Reimer   v.    Reimer 553a 

Remer  v.  Benedict. 277a 

Renn   v.    Lamon 174 

Renvaize  v.  Cooper 504 

Reuff  v.  Coleman 604 

Rewalt  V.  Ulrich 570 

Rex  V.  Bettesworth 48 

Reynish  v.  Martin 603 

Reynolds  v.  Adams 236,  242,  243 

Reynolds  v.  Kortright 250 

V.  Reynolds 95,  342,  578 

V.  Whelan     573 

R,eynolds,  Re 514,  515,  518a,  533 

Rhea  v.   Madison 239 

Rhoad's  Estate   404 

Rhode  Island  Trust  Co.  v.  Com- 
mercial Bank 559 

Rhodes  v.  Rhodes 219,  248 

v.  Vinson    384 

v.  Weldy     426 

Rice  V.  Hartman  453 

v.  Rice 74,  81,  159,  160,  187 

Rich  V.  Cockell 51 

V.  Gilkey   384,  418 

Richard  v.  Richard 365,  375 

Richards  v.  Miller 539 

V.  Queen's    Proctor 407 


Sec. 

Richards,   Goods   of 64 

Richardson  v.   Ely 246 

V.  Hall    514 

V.  Harrison    553 

V.  Martin    542 

V.  Noyes    471 

V.Richardson     243,  354 

V.  Wheatland     562 

Richardson's  Estate 255 

Richmond's  Appeal 70,  210,  239 

Rickards  v.  Mumford 399 

Rickman  v.  Meier 521 

Rick's  Estate    229,  232 

Riddle's    Estate    20 

Rider  v.  Miller 187,  200 

Ridgely  v.  Brand 243 

Ridley  v.  Coleman 374 

Rife  v.   Geyer . 606 

Rife's  Appeal   382,  407 

Riggin  V.  Westminster  College..  141 

Riggs  V.  Palmer 23 

V.  Riggs    343 

Right  V.  Price 313,  340 

Riley  v.  Riley 303,  308,  331) 

Ringrose  v.  Bramham 529 

Rishton  v.  Cobb 224 

Risk's  Appeal    519 

Rivard  v.  Rivard 161 

Roane  v.   Hollingshead 424 

Robb  V.  Robb 494 

Roberts  v.  Bidwell 193 

Roberts  v.  Dixwell 551 

V.  Phillips    335,   338,  346 

V.  Roberts    287 

V.  Round     399 

V.  Tarwick 201,  203,  243 

V.  Welch 323,    324,  327 

V.  West     478 

Robertson  v.  Johnson 470,  522 

V.  ]\Iowell   604 

V.  Smith    269,  273 

Robeson  v.  Kea 266 

Robins  v.  Coryell 308 

V.  Quinliven     544 


Ixx 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in   Volume  II. 


Eobinson  v.  Adams. 74,  144,  159,  168 

174,   184,   198,  200,  243 

V.  Brewster    262,  347,  348 

V.  Greene    561 

V.  Hutchinson    243 

Eobinson  t.  Ingrain 268 

V.  Jones    324 

V.  Martin    466,  482 

V.  McDiarmid    529 

V.  Robinson... 81,    231,    233,  243 

246,  o55 

V.  Savage    350 

V.  Schly 257,    268,  270 

V.  Shepherd    538 

V.  Stuart     229,  243 

V.  Taylor    545 

Eobinson,   Re    270,  604 

Robinson's  Goods 265,    274,  287 

Eobnett   v.   Ashlock 289 

Eobson  V.  Jones 257 

Robson,  Re  512 

Roche  V.  Nason 120,  193,  194 

Rockwell  V.   Bradshaw 491 

V.  Swift    598 

Eockwell's  Appeal    250 

Roddy  V.  Fitzgerald 554,  561 

Rodisch    V.    Moore 570 

Roe  V.  Grew 466 

V.  Taylor   68,  229 

Rogers  v.   Diamond 229,  327,  329 

V.  Hinton    64 

V.  Pittis    447,  450 

V.  Rogers    574 

V.  Ross    523 

Rogers'   Estate    24 

Rogers  v.  Smitli 50i) 

V.  Thomas     505 

Rogers,    Ap])el]ant 458 

Rohrer  v.  Stehnian 266 

Rollwagen  v.  Rollwagen 229 

Roney  v.  Stiltz 29 

Roole  V.   Wilson 304 

Rnoff's    Ainx-ai    268 

Roome  v.  IMiilli])8 56*2 

Root's   P^stato    536 


hEC. 

Roper  V.  Roper 555 

Rose  V.  Hatch 610 

V.  Hill     483 

V.  McHose    470 

V.  Quick     267,  269 

Roseboom  v.  Roseboom 550 

Rosher  v.   Rosher 602 

Rosquin  v.  Hamersley 532 

Ross  V    Christmas 188 

V.  Drake   530,  565,  566 

V.  Ewer    264,  326 

V.  Gleason    427a 

V.  McQuiston     192 

V.  Ross     508,  559 

Rossetter   v.   Simmons 510,  550 

Roth's    Succession   256,  352 

Roundell  v.   Currer 599 

Roundtree  v.  Roundtree 565 

Rouse  V.  Branch 605 

Rowan's  Estate.  .298a,  397,  432,  437 

Rowe  V.  Moore 553a 

Rowlett  V.  Moore 355 

Royle  V.   Harris 311 

Rubeck  v.  Gardner ^5 

Ruckle  V.    Grafflin 486 

Rucker  v.  Lambdin 350 

Ruddell  V.  Wren 533 

Rudff's  Appeal    30.i 

Rudisill  V.  Rodes 415 

Rudy  V.  Ulrieh.  ..236,  417,  418,  410 

422 

Ruffin  V.  Ruffin 512 

Ruffino's  Estate   22,  78a 

Rugg  V.  Rugg 347 

Riiggles  V.  Jewett 603 

Ruggles  V.   Randall 542 

Runkle  v.  Gates 243,  386,  305 

Runyan  v.  Price 184,  201,  208 

Rusling  V.  Rusling 245 

Russell  V.  Eubank 559 

V.  Falls     342 

V.  Hartley    406,   466,  492a 

V.  Jackson    5S6 

V.  Russell      534 

V.  Jones    453 


TABLE    OF    CASES    IN"    VOL.    I. 


Ixxi 


See  also  Table  of  Cases  In  Volume  II. 


Sec. 

Russell  V.  Webster 277a 

Rutherford   v.   Morris '232 

Pvutt's    Estate   371 

Eyall  V.  Bell 518 

Eyan  v.  Allen 503,  553 

V.  Cowley   554 

Eyder  v.   Lyon 597 

Ryers  v.  Wheeler 575 

Eyman  v.  Crawford 201,  203,  243 

S. 

,  Saberton  v.  Skeels 544 

Sadler  v.  Sadler 365,  370,  371 

Safe  Deposit  Co.  v.  Nevin 468 

Safe  Deposit  Co.  v.  Thom.  .  .384,  396 

397,  398,  401,  431,  434,  442 

Salaman,  Re    533 

Sale  V.  Thornberry 595 

Salmon  v.  Hays 300 

V.  Stuyvesant    218 

Sammis  v.  Sammis 503 

Samuel  v.   Samuel 606 

Sanborn  v.  Batchelder 57 

V.  Clough    512 

Sandberg's  Will    458a 

Sanderson  v.  Bailey 536 

Sanford  v.   Vaughan 280 

Santa  Clara  Academy  v.  Sullivan  24 

Saunders's  Appeal 242,  244 

Savage  v.   Bowen 320 

Savory,  Re  303 

Sawyer  v.   Sawyer 512 

Saxon  v.   WHiitaker 189 

Sayre  v.  Princeton  University..  71 

Schaife  v.   Emmons 371 

Scales   v.    Thornton 373 

Scammell  v.   Wilkinson 50,  59 

Scarborough  v.  Baskin 482 

Schad's  Appeal   207 

Schafer  v.  Eneu 534 

Schaffer  v.  Katelle 529 

Schapiro  v.  Howard 481,     572 

Schillinger  v.   Bawlek 281 

Schlottman  v.  Hoffman 220,     568 

Schley  v.  McCeney 64 


Schluser's  Estate    

Schmidt  v.  Schmidt 162, 

Schnable  v.  Henderson 

Schnee  v.  Schnee  

Schneider  v.  Manning 77, 

V.  Norris    

Schofield  v.  Walker 

V.  Will    

Scholl's  Estate    

Schull  V.  Murray 

Schultz  V.   Schultz 

Schumacher  v.  Schmidt. 454,  456, 

Schutt  v.  Missionary  Society 

Scott  V.  Fink 407, 

V.  Scott 168, 

V.  Terry 

V.  Lord  Scarborough   ...529, 

V.  Neeves 575, 

V.  West 562, 

Scott's  Estate 539,  540, 

Scott's  Goods    

Scoville   V.   Mason 

Scribner  v.  Crane 182,  230, 

Scruby  v.  Fordham 250, 

385,  391,  397, 

Seal,  Re   

Scale  V.  Chambliss 

Seale-Hayne  v.  Jordell 

Seaman's  Friend  Soc.  v.  Hopper. 

159, 

Searle  v.   Fieles 

Sears  v.   Russell 562, 

Sechrest  v.  Edwards 230,  235, 

Security  Trust  Co.  v.  Lovett .... 

Segur's  Will   159, 

Seibert   v.   Hatcher 

V.  Wise   

Seiter  v.  Straub 

Seitz  V.  Faversham 488, 

Selleck's  Will 

Selwood  V.  Mildmay 

Semmes   v.   Semmes. .  .  .398,   417, 

,  Senger.  v.   Senger 

j  Sevening  v.  Smith 68,  70, 


Sec. 
126 
532a 
397 
330 
160 
25  S 
220 
399 
480 

56 
402 
457 
459 
453 
454 
415 
570 
540 
531 
583 
563 
541 
377 
513 
236 
384 
430 
502 
194 
404 

74 
161 
513 
563 
323 
535 
161 
239 
477 

43 
597 
230 
574 
420 
540 

77 


Ixxii 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


Severin   v.   Zack 

Severson  v.  Severson 

Sewall  V.  Roberts 534, 

V.  Robbins   

V.  Welmer 

Sewell  V.  Slingluff 277,  278, 

Seymour's   Trusts    

Seymour  v.  Sanford 284, 

Shakespeare   v.   Markhand 

Shailer  v.  Bumstead.  . .  .192,  226, 
238,  239,  242,  243, 

Shallcross  v.  Palmer 243, 

Shankland's  Appeal    

Sharkey  t.  McDermott 

Sharland,  Re  

Sharman,  Re   

Sharp  V.  Hall 

V.  Sharp   

Sharp's  Appeal   

Sharpe  v.  Mathews 

Shattock  V.  Shattock 

Shattuck  V.  Stickney 

Shaul's  Will   229, 

Shaver  v.   Ewald 

V.   McCarthy    

Shaw  V.  Camp 

V.  Ford 

V.  Hussey 

V.  Neville 

V.  Shaw 

Shaffer's  Estate   

Sheath  v.   York 

Sheer  v.   Sheer 

Sheffield,  Re    

Sheldon  v.  Dow 32, 

V.   Sheldon    

Sholdon,  Re   

Shelley  v.  Bryer 

Shelley's   Case    

Shopard   v.   Shepard 

Shercr   v.  Bishop 

Slierrat  v.  Bontlcy 

V.  Mountfonl   

Sherwood   v.   Sanderson 

V.    Sherwood    

Bhidd.H  V.  Mifllin 


Skc.  I 

Sec. 

201 

Shield's  v.  Freeman 

281 

518 

Shifley  v.  Mercantile  Co. . . . 

572 

535 

Shingler    v.    Pemberton 

.... 

265 

180 

Shires  v.  Glasscock 

341 

20 

Shore  v.  Wilson 

.570, 

580 

292 

Short   V.    Brubaker 

163 

544 

v.  Smith   

.... 

431 

595 

Showers  v.  Showers 

256 

453 

Shreinen's  Appeal   

*  •  • . 

159 

229 

Shriever    v.    Lynn 

.... 

466 

244 

Shumway  v.  Holbrook 

295 

435 

Sibley   v.   Morse 

.185, 

242 

606 

V.  Perry    

. . . . 

535 

454 

Sibthrop,  Goods  of 

.... 

281 

566 

Sickle's  Will   

.... 

233 

334 

Sieb's   Estate    

.... 

168 

273 

Sigel's  Estate    

.... 

469 

549 

Sills   V.   Brown 

?!•? 

137 

Silsby  V.   Bullock 

49, 

57 

268 

Silverthorn's  Will  

..78, 

137 

64 

Simmons  v    Leonard 

.327, 

339 

610 

V.   Simmons    

415 

243 

Simpson  v.  Brist 

553 

600 

V.  Taxon  

407 

68 

V.  Smith   

477 

282 

Simpson,   Re    

443 

602 

Simrell's  Estate   

434 

484 

Sims  V.  Sims 

.569, 

610 

321 

Sinclair's  Goods   

280 

348 

Singer  v.  Taylor 

.238, 

511 

397 

Singleton  v.  Tomlinson 

.281, 

282 

425 

Sisson  V.  Seabury 464, 

466, 

552 

255 

553, 

561 

566a 

Sisters  of  Charity  v.  Kelly. 

.325, 

326 

80 

Skerrott's   Estate    256, 

265, 

270 

281 

Skinner  v.  Bible  Society. . .  . 

.410, 

519 

403 

508 

5.36 

v.  Lewis   

163 

553 

v.    Spann 489, 

503, 

508 

599 

|Skipworth  v.  Cabell. ..  .410, 

519, 

598 

250 

Slade  v.   Friend 

445 

478 

Slanning   v.    Style 

512 

536 

Slater   v.   Dangcrfield 

,554 

81 

v.  Slater   

238 

518 

Slaughter  v.  Health 

174 

'ji;') 

v.   Stephens    

382 

TABLE    OF    CASES    IN    VOL.    I. 


Ixxiii 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Sleramer  v.   Crampton 553 

Slinger's  Will   81 

Slingloff  V.  Bruner 184a,  353 

Slinn's   Goods    2G9 

Sloan    V.    Maxwell 32,  174 

Sloan's  Estate    355 

Small  V.  Jose 513 

V.  Small   223,  229,  230,  231 

236,  325 

Smalley  v.  Smalley 353,  358 

Smart  v.  Tranter 55 

Smart's    Goods    570 

Smee  v.  Smee 156,  158,  190 

Smeer   v.   Bryer 311 

Smiley  v.  Gambill 386,  387,  395 

Smission,  Re    542,  563 

Smith  V.  Ashurst 529 

V.  Baxter    272 

V.  Bryan   28 

V.  Bell 463,  466,  467,  471 

478,  558,  559 

V.  Burch    505 

V.  Butcher    547 

V.  Campbell    537 

V.  Clemson    424 

V.  Codron    327 

V.  Davis    505 

V.  Dennis    501 

V.  Dolby    247,  304,  326 

V.  Du  Bose 22 

V.  Edrington 11,  486 

V.  Evans    309 

V.  Tenner    243,  248,  386 

V.  Goodell    348 

V.  Harris 306,  308,  407 

V.  Hastings    553 

V.  Henline 68,227,229,  237 

242,  245 

V.  Holden    272,  323 

V.  Humphreys    453 

V.  Hunter    534 

V.  James    77,  160 

V.  Jewitt    512,  599 

V.  Jones    355 

V.  Joyner    532a 

V.  Keller    229,    242,  243 


Smith  V.  Kimball 583 

V.  Lidiard    536 

V.  McChesney 407 

V.  Parsons    5G2 

V.  Pepper    538 

V.  Piper     472 

V.  Ridgway     501 

V.  Robertson    20 

V.  Scott    268 

V.  Smith.. 77,  187,  241,  267,  268a 

279,  327,  510,  522,  565,  583 

V.  Shriver  479 

V.  Streatfield    541 

V.  Sweet     49,  56 

V.  Tebbitt...70,  74,  83,  147,  153 

154,  155,  157,  166,  210 

V.  Terry    522 

V.  Thompson    611 

V.  Thurman    377 

V.  West    560 

Smith,  G^ods  of 48,  51,  263,  293 

Smith's  Goods 219 

Trusts,  Re   529 

vSmith,  Re 21a,  447,  505,  533 

Smith's  Will 168,   186,  367 

Smithdeal  v.  Smith 3fi5 

Smithwick  v.  Jordan 384 

Smithsonian  Inst.  v.  Meech 605 

Smock   V.   Smock 393,  401 

Smythe  v.  Smythe 603 

Snider  v.   Burks 399 

Snow  V.  Benton 110,  189,  192 

iSnowhill  V.  Snowhill 406 

Snydam  v.  Thayer 470 

Snyder  v.  Bull 354 

V.  Erwin 237a 

V.  Sherman    136,  137 

V.  Snyder    454 

V.  Warbasse   220 

Soar  V.  Dolman 433 

Soher's    Estate 256,  318 

Somers  v.  McCready 231 

Soper  V.  Brown 535 

Sorenson  v.  Carey 574 

Southard   v.    Southard 564a 

Sorver  v.  Brendt 533 


Ixxiv 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in   Volume  II. 


Sec. 

Soule's    Will 245,  246 

Southall  V.  Jones 299 

Southworth  v.  Adams 402,  '412 

V.  Southworth    83,  29Sa 

Soward  v.  Soward 312,  335 

Sparhawk  v.  iSparhawk . .  23,  350,  353 

Sparks's   Appeal 501 

Speer  v.  Colbert 24 

Spence  v.   Spence 194 

Spencer  v.  Adams 503,  563 

V.  Spencer    29a,   294,  253a 

V.  Ten-}'    185 

Spencer's  Estate 168 

Sperl's   Estate 246 

Sperling's  Goods 332 

Spinney  v.  Eaton 427,  466 

Spooner's    Trusts 519 

Sprague  v.  Luther 303 

Spratt  V.  Spratt 70 

Spratt's  Goods 287,  366 

Sprigge    V.    Sprigge 402 

Spreckles'  Estate 478,  490 

Springer  v.  Congleton 529 

Springett  v.  Jennings 521 

St.  John's  Parish  v.  Bostwick.  .  .  280 

St.   Leger's  Appeal 68,  245 

St.  Stevens  Church  v.  Morris ....  489 

Stackhouse  v.  Houton..l59,  160,  203 

vStall  V.  Stall 84 

Stametz  v.  Michenor 246 

Stamford  v.  Wliite 398 

Stamper  v.  Hooks 378 

Standen  v.  Standen 525,  583 

Standenmeier  v.   Williamson....  210 

Stanley   v.    Colt 562,  598 

Stanton   v.  Wetherwax 159 

Stapilton   v.   Stapilton 605 

Staples  V.  Wellington..  11 4,  122,  187 

Stark's    Will 504 

Starkey  v.   Brooks 545 

Starling  v.  Price 529,  532 

Starret  v.  Douglas 125 

.Staser  v.  Ilogan 242 

State  V.  Clarke 41 

V.  Jones    15'J 


Sec. 

State  V.  Pike 200,  202 

V.  Raughley    529 

V.  Terrell    210 

State  Banic  v.  Bliss 457 

Stead  V.  Mellor 595 

Stead  V.  Curtis 2^5 

Stebbins  v.  Hart 128 

V.  Stebbins    478 

Steed  V.  Galley 110,  111,  189 

Steel  V.  Cook 2S 

Steele  v.  Midland 50) 

Steele,  Goods  of 443 

Steinke's  Will 403 

Steinmetz's   Estate 533 

Stephens  v.  Taprell 392 

Stephenson  v.  Stephenson 243 

Stephenson,   Re 588,  594- 

Stetson  V.  Stetson 415 

Stevens  v.  Bagwell 48 

V.  Lee    454 

V.  Snelling    484 

V.  Stevens   187 

V.  Vaneleve 67,  198,  303 

V.  Winship    558 

Stevenson  v.   Fox 5G5 

V.  Hudddleson    266,  268 

Stewart   v.   Elliott 228 

V.  Harriman    354 

V.  Lispenard   69,  92,  18S 

V.  Lyons 67,  72,  229,  246 

V.  Mulholland    42 1- 

V.  Powell    424 

V.  Ross    57 

V.  Sheffield    521 

V.  Stewart   ...243,  270,  297,  481 

516,  534 

Stevens  v.  Myers 4.^0 

Stickney's  Will COO 

Stickney  v.  Hammond 420 

Still  V.  Hoste 57  ^ 

Stimson  v.  Vroman 476 

Stimson's  Estate 1,  301,  312 

354,  595 

Stirk's   Estate 221 

Stirling  v.  Stirling 198,  322,  323 


TABLE    OF    CARES    IW    VOL.    I. 


Ixxv 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Stockdale  v.  Nicholson 544 

Stockwell   V.   Ritherdon 387 

Stoddard  v.  Grant 407 

V.  Nelson 536 

Stone,   Re 539 

Stone  V.  Damon 81 

V.  Hoskins    458a 

V.  North    507 

V.  Todd   453 

Storer  v.  Wheatley 543 

Stoutenburgh  v.  Hopkins. 56,  84,  239 

Stover  V.  Kendall 430,  431,  447 

Stracy,   Goods  of 456 

Strathmore  v.  Bowes 449 

Strauss  v.  Schmidt 287 

Straw  V.  East  Maine  Conference.  583 

Streatley,  Goods   of 335 

Stretch   v.   Watkins 507 

Strieker  v.  Groves 312 

Strickland  v.  Strickland 399 

Stride  v.  Cooper 445 

Strish  V.   Pelham 378 

Strode  v.  Lady  Falkland 568 

Strong  V.  White 506 

Strong's    Appeal 384  ] 

Stroud   V.    Connelly 56 

Struth  V.  Decker 232,  239 

Stubbs  V.  Houston.  188,  201,  206,  207 

Stull   V.   Stull 147,   162,  229 

Sturdivant  v.  Brichett.  .328,  342,  343 

Sturgis  V.  Work 518 

Siigden  V.  Lord  St.  Leonards. 402,  403 

Sullivan  v.  Sullivan. 23,  350,  351,  355 

V.  Winthrop    570 

Sumner   v.   Crane 453 

Summit  v.  Yount 466,  603 

Sumpter  v.   Carter 463 

Sunday's  Estate 2G8,  268a,  271 

Sunderland  v.   Hood 22,  229 

Sunderland,    Re 281,  282 

Surface  v.  Bentz 185 

Surman   v.   Surman 592 

Sutcliffe   v.   Ricliard^on 604 

Suter   V.    Suter 600 

Sutton   V.    Cole 5S3 

V.  Morgan    209 


Sec. 

Sutton  V.  Sadler 173,  175,  176 

V.  Sutton 194,    229,  391 

397,  430 

SVabie  v.  Colby 541 

Swaim's   Will 284 

Swan    V.    Holmes 541 

Swann  v.   Housman 454 

V.  Hammond    424: 

Swanson's   Succession 387,  396 

Swasey  v.  Jaques 543 

V.  Burnett    505 

Sweaingen   v.   Inman 239 

Sweet  V.  Dutton 542,  547 

v.  Sweet   393,  39G 

Swenarton  v.  Hancock 240 

Swenson's    Estate 547 

Swett  V,  Boardman 218,  272,  278 

Swift  V.  Duffield 532 

V.  Swift    494 

V.  Wiley    330 

Swinburne,    Re 539 

Swinford,  Goods  of 321 

Swinton  v.  Bailey 391,  397 

Swygart   v.   Willard 159.  193 

Sydnor  v.  Palmer 534 

Sykes  v.  Sykes 407,  519 

Syme  v.   Boughton 184 

Symes  v.  Green 110,  173,  176,  188 

Symmes  v.  Arnold 265 

T. 

Taafe  v.  Conmee 541 

Taber  v.  Packwood 57 

Taff  V.   Hosmer 175,  184 

Taggart  v.  Squire 400,  349 

Talby  v.  Eutcerworth 374 

Tamplin,  Goods  of 295 

Tanton   v.   Keller 450 

Tapley  v.  Keiit 2Co 

Tappan's  Appeal 604 

Tappen  v.  Davidson 346 

Tappenden  v.   Walsh 52 

Tarrant   v.   Core 29 

Tate   V.    Tate 255 

Tatham  v.  Wright.  Ill,  175,  179,  1S2 

Taubenhan  v.  Dunz 514 


Ixxvi 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in   Volume  II. 


Sec. 

Tawney  v.  Long 159,  229,  230 

237,  239 

Taylor  v.  Beverly 544 

V.  Brodhead    346 

V.  Cox    68 

V.  Creswell    187 

V.  D'Egville    279 

V.  Higga    453 

V.  Kelly    270,  386 

V.  Meads    51 

V.  Mitchell    453,  489 

V.  Mosher    530,  562 

V.  Pegram    83,  403 

V.  Purdy    268 

V.  Richardson    584 

V.  Taylor   405,  415,  518,  535 

V.  Toien    575,  583 

V.  Wilburn    238 

Taylor,   Re 573 

Taylor's   Estate    312 

Teacle's  Estate    406,  407 

Tempest  v.  Tempest 23,  357 

Temple   v.   Mead 258 

V.  Sammis 474 

V.  Temple 126,  188 

V.  Walker 299 

Templeton  v.  Butler 427 

Tennent   v.   Tennent 496 

Terrible,   Re    443 

Terry  v.  Glover 268 

Teske  v.  Dittberner 453a,  454 

Towksbury  v.  French 516 

Tharp,   Re    53 

Thayer  v.  Spear 604 

V.   Wellington 281,  521,  546 

Theological  Seminary  v.  Calhoun  184 

Thickeld  v.  Bond 185 

Thomas  v.   Anderson 562 

V.  Carter VH 

V.  Evans 408,  417,  421 

V.  Ivcvering 409 

V.  Lines 570 

V.  Miller 539 

V.  Tliomas 515,  560 

Thomas's   Estate    501 

Thompson  v.  Browne 205 


Sec. 

Thompson  v.   Churchill 487 

V.  Davitte 239,  .331 

V.  Gaut 470,  513 

V.  Grant 605 

V.  Hawks 168,  246 

V.  Ish 68,  229 

V.  Johnson 273 

V.  Kyner 67,  68,  174,  175.  180 

V.  Lawley 494 

V.  Newlin 489 

V.  Peterson 239 

V.  Pew 294 

V.  Quimby 159,  281 

V.  Stevens 326 

V.  Svi'oope 24 

V,  Thompson...  159,  160,  167,  105 

270,  303,  487 

V.  Updegraff 243 

V.  Young 540,  544 

Thompson,  Ex  parte 366,  367 

Thompson,  Re    418,  543 

Thompson's  Will    238 

I  Thompson,   Goods   of 216 

I  Thomson    v.    Ludington 533 

I  Thorncroft  v.  Lashmar 279,  294 

|Thorne,   Goods  of 287,  367 

Thorne  v.  Rooke 423 

Thornton  v.  Thornton 177,  178 

198,  240 

Thornton's   Goods    385 

Thorold  v.  Thorold 265 

Thorp  V.  Owen 595 

Thrasher  v.  Ingam 476,  478,  489 

Thwaites    v.    Over 537 

Thynne  v.  Stanhope 398 

Tibbits  v.  Tibbits 601 

Tiers    v.    Tiers 473 

Tiffany  v.  Emmett 533,  537 

Tiffin  V.  Longman 537 

Tilden  v.  Green 592a 

V.  Tilden. ...'..  32',  347,  437,  599 

Tilghman,   Re    545 

Tillinghast  v.  Bradford 006 

Tilman    v.   Davis 542 

Tilton  v.  American  Bible  Society  573 

v.  Tilton   561 


TABLE    OF    CASES    IN    VOL.    I. 


Ixxvii 


See  also  Table  of  Cases  In  Volume  II. 


Sec. 

Timewell  v.  Perkins 514 

Timon   v.   Claffy 387,  388 

Tindall  v.  Tindall 519 

Tingley   v.    Cowgill 174 

Titlow  V.  Titlow 81 

Tittel's   Estate    161 

Todd   V.    Sawyer 602 

V.  Todd   68,  185 

Todd's  Will    265,  289 

Toebbe  v.  Williams 256,  275 

Tolson  V.  Tolson 537 

Tomlinson  v.   Burg 512 

V.  Tomlinson   425 

Tomlinson's    Estate 391 ,  397 

Tompkins,  Re   610 

Toms  V.  Williams 21 

Toner  v.  Collins 563 

Tongue  v.  Nut  well 521,  546 

Tonnele  v.  Hall 281,  314,  337 

Toomes's  Estate    204 

Torrey  v.   Burney 200 

Tower   v.   Butts 532 

Towle  V.  Towle 453 

Townsend  v.  Bogart 70,  82,  93 

Townshend  v.  Howard 393 

Townsend   v.   Moore 411 

V.  Pepperell 194 

V.  Savings  Bank    566a 

V.  Townsend 223 

V.  Vanderwether 453 

V.  Townshend 187 

V.  Windham 566 

Townsend's  Estate    77,  238,  244 

Towry,  Re   438 

Trappes  v.  Meredith 64 

Traylor's  Estate    584,  588 

Tredwell,  Re   603 

Trelvar  v.  Lean 345 

Trethewy   v.   Helgar 544 

Trevanion  v.  Vivian 523 

Trevanion,  Re   328 

Tribe   v.   Tribe 341 

Trice   v.   Shipton 386 

Trimlestown   v.   D' Alton 248 

Trimmell   v.   Fell 424 

Trinitarium  Church,  Re 353 

Trlnnel's  Goods   341 


Sec. 

Trost   V.    Dingier 229 

Troutbeck  v.  Boughey 52 

Trubey  v.  Richardson 194,  245 

Trumbull   v.   Gibbons 162 

Trust  Co.  V.  Wolcott 602 

Trust  Co.,  P      501 

Tucker   v.   Lisliop 531 

V.  Calvert 241 

V.  Field 227 

V.  Inman 48,  50 

V.  Oxner 324 

V.  Seaman's  Aid   Society. 24,  575 

578,  579 

V.  Tucker 354 

Tudor  V.   Tudor 430 

Tugman   v.   Hopkins 64 

Tuller,  Re    424 

Tullls    V.    Kidd 205 

Tunlson   v.   Tunlson 233 

Tupper   V.   Tupper 398,  418 

Turner  v.  Anderson 68,  229 

V.  Cheesman 178,  198 

203,  209,  227,  229 

V.  Cook 174,  324 

V.  Hand 159,  162 

V.  Ivie 555 

V.  Scott 257 

V.  Withers 533 

Turner,    Ex    parte 365 

Turner's  Appeal 68,  227,  228 

Turners    Estate    491 

Turner's  Will  477,  516 

Turell's  Will   2.55 

Turnure   v.   Turnure 326 

Tussey   v.    Owen 454 

Tuttle  V.  Puitt 539 

Twopenny   v.   Peyton 606 

Tyler,  Re   21 

Tyler  v.  Gardiner 239,  246 

V.  Merchant  Taylor's  Co 434 

V.  Theilig 310 

V.  Wheeler 56 

V.  Wright 566a 

Tyner's  Estate    236 

Tyrrell   v.   Lyford 516 

Tyson   v.   Tyson 174,  184 


Ixjxviii 


TABLE    OF    CASES    IN    VOL.    I. 


See  also   Table   of   Cases   in   Volume   II. 


U. 

Ulrich's   Appeal 475,   514, 

Underwood  v.   Thurman 

Union    Trust   Co.   v.    St.    Luke's 

Hospital 

United  States  v.  McGlue 

University  CJollege  v.  Taylor .  . . 

Upcburch   v.    Upchurch 303, 

312,  328, 

Upfil  V.  Marshall 

Upham  V.  Plankington 

Upington  v.  Corrigan 

Usticke  V.   Bowden 413, 

Utterson  v.  Utterson 


Yail   V.   Vail 

Van  Alst  v.  Hunter 77,  132, 

135, 

Van  Alstyne  v.  Spraker 

Van  Amee  v.  Jackson 

Van  Buren  v.  Dash 

Vance  v.  Upson 194, 

V.  Vance   

Van  den  Heuvel's  Will 

Van  Deuzer  v.  Gordon. 366,  367, 

Vandeveer  v.   Higgins 

VandruflF  v.  Rirehait 303, 

Van   Gallow  v.  Brandt. 540,  562, 

Van   Gorder  v.  Smith 

Van  Grutten  v.  Foxwell 

Van  Hanswick  v.  Wiese 

Van  Horn  v.  Campbell 

Van  Horn  v.  Deraarest 

Van  Kleeck  v.  Phipps 

Van    Ness's    Will 

Van  Rensselaer  v.  Kearney 

Vanvalkcnherg  v.  Vanvalkcnburg 

Van  Verhton  v.  Keator 

Van  Wert  v.  Benedict 

Van  Winkle  v.  Schoonmakor.  .  .  . 
Van  Wowrt's  Will 3f)4, 


Sec. 
55!) 
243 

57S 
212 
28] 
464 
305 
330 
450 
611 
28 
439 
439 


480 
134 
137 
483 
595 
535 
251 
243 
174 
368 
378 
424 
306 
562a 
570 
595 
552 
306 
560 
274 
239 
294 
556 
243 
47S 
417 
40 
397 


Sec. 

Varick  v.  .Jackson    28 

Varrell   v.    Wendell 537 

Vaughan  v.   Burford 328 

V.   Dickes    564 

Vaughan,  Re    21 

Veal  V.  Veal 271 

Vedder,  Re    137,  159,   160,  16S 

Veeland  v.  Ryno 56 

Vermont   Baptist   Convention   v. 

Ladd 583 

Vernam  v.   Spencer 268 

Vernon  v.  Kirk.  .  .247,  303,  304,  306 

347 

Verplanck,  Re   538^ 

Vessey  v.  Wilkinson 562 

Vestal  V.  Garrett 409 

Viele  V.  Keeler 417,  437 

Villar  V.  Gilbey 480,  533 

Viner  v.  Francis 529 

Vines  v.  Clingfost 303,  306,  308 

Vine's  Estate 287 

Vogt  v.   Graff 55^ 

Von  de  Veld  v.  Judy 78 

Voodry  v.  University  of  Illinois.  72 

Voorhis  v.  Voorhis 385 

Voorhis,  Re    326 

Voorhis'   Will    422 

Vosberg   v.   Mallory 63 

Vreeland   v.    McClelland 77 

v.  Ryno     56 

Vrooman  v.  Powers 375 

W. 

Wade-Gerry  v.  Handley 52S 

Wadhaus  v.  American  Home  Mis- 
sionary   Society    57 

Wadsworth  v.  Wadsworth 23 

Wagner  v.  Ellis 45,  49 

v.  Marr     457 

V.  M'Donald 265,  289 

v.  Sharp   540 

v.  Ziegler    174 

Wagner,  Estate  of 49 

WagstafT.  Re    603 

Wain  waring  v.  Becvor 531 


TABLE    OF    CASES    IN    VOL.    I. 


Ixxix 


See  also  Table  of  Cases  in   Volume  II. 


Sec. 

Wainwright's  Appeal 229 

Wait  V.  Belding 10,  29 

Wait  V.  Coombes .'30.5 

V,  Frisbie    306,  317 

WakefieW  v.  Phelps 11,  60,  486 

Walcott  V.  Ochterlong 417 

Wales   V.   Templeton 516 

Walker  ▼.  Dewing 566 

V.  Fields  210 

Walker  v.  Griffin 540 

V.  Hill     608 

V.  Hunter    299,  238 

V.  Jones    266 

V.  Maine     565 

V.  Smith  245 

V.  Steers     427 

V.  Walker.... 318,  342,  426,  456 

457,  459,  478 

V.  Webster 539 

Walker,   Goods  of 311 

Walker's  Estate 332,  564 

Walker's   Will    68,  185 

Walkerly's    Estate  477 

Wall  V.  Wall 256 

Wall,    Re    60.5 

Wallace  v.   Diehl 563 

V.  Foxnall    579 

V.  Noland    461,  481 

V.  Smith   602 

V.  Wallace    10,  453 

Wallen   v.   Wallen 239 

Waller  v.  Waller 256,  312 

Wallis  V.   Taylor 544 

Walls  V.  Walls 77,  238,  242 

Walpole  V.  Cholmondeley 450 

V.  Oxford    454 

Walter's   Will,   Re 259 

V.  Kendrick 317a 

V.  Walton     426 

Walton's  Estate   447 

Wampler  v.  Han-ell 68,  89a 

V.  Wampler    98,  317 

Ward  V.  Amory 468,  474 

V,  Brown    18.5 

V.  Glenn    49 


Sec. 

Ward  V.  Patterson 600 

V.   Saunders    '. 542 

V.  Ward     426,  487 

V.  Wolf     19 

Ward's  Goods    287 

Ward's  Will 424 

Warden   v.   Overman 481 

Ware  v.  Rowland 563 

V.  Ware    194,   195,  244 

Ware,  Re    544 

Waring   v.   Lee 536 

V.  Waring. 74,   77,   143,   155,  156 

157,  159 

Warner  v.  Bates 595 

V.  Beach   424,  425,  427 

V.  Warner  420,  425 

Warren  v.  Baxter 350,  351,  354 

V.  Harding    366,  367 

Warrington,  v.  Warrington 566 

Warwick  v.  Warwick 256,  312 

Washburn  v.  Cuddihy 210 

Washington's  Estate   21 

Waterman  v.  Greene 550 

V.  Hawkins     42r) 

V.  Whitney     243 

Waters  v.   Cline 453 

V.  Waters   174,  227,  240 

Watkins  v.  Dean 257,  265 

Watkins,  Goods  of 282 

Watson  V.  Anderson : . . .  211 

V.  Donnelly    70 

Watson   V.  Hinson 434 

V.  McLenck    427 

V.  Piper     326,  342 

V.  Watson     137 

Watson's  Will  191 

Watts  V.  Cole 28 

V.  Public  Administrator.266,  312 

Waugh  V.   Riley 35 

Wayman  v.  Follansbee 532a 

Weare  r.  W«are 512 

Weatherall  v.  Thornburgh 523 

V.  Weatherall     126,  128 

Weatherhead  v.   Baskerville .  480,  585 

Webb  V.  Byng 555 


Ixxx 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  In  Volume  II. 


Sec. 

Webb  V.   Fleming 323,  327 

V.  Haj-den     5711 

V.  Jones    424 

V.  Lines     565 

V.  Sweet    553a 

V.  Wools   595 

Webb,  Goods  of 327 

Webber  v.  Sullivan 230 

Weber  v.   Strobel 243 

Webster  v.  Cooper 562 

V.  Morris    604 

V.  Weirs 512,  514 

V.  Yorty    323 

Weed  V.  Hoge 501 

Weeden  v.  Bartlett 374 

Weedman's  Estate 67,  68,  70 

Weeks   v.    Cornwell 470 

V.  Mansfield     472 

V.  McBeth     402 

Weems  v.  Weems 201 

Weil  V.  King 562 

Weir  V.  Fitzgerald .  95,  96,  98,  99,  238 

Welch  V.  Adams    323,  327 

V.  Blanchard    520 

V.  Brimmer    563 

V.  Phillips    413 

V.  Welch     347 

Wellborn  v.  Townsend 486 

Wellington  v.  Aptborp 453 

V.  Wellington     425 

Wells  V.  Doane 263 

Wells  V.  Thompson 174 

Wells,  Re   570 

Welsh  V.  Gist 400 

Welsh,  Re 240,  246,  248,  250 

West  ▼.  West 57.     64 

V.  Shuttleworth 21 

Wostcott  V.   Cady 468,  566 

Wofltcott  V.  Binford 552 

W«»8tcott  V.   Rlioppard 231 

Wpflter  V.  Wcatf-r 231 

We.stlake  v.  Wcatlake 577 

Wfthfrb«>  V.  Wetherbeo 207 

W.-thoriirH  Estate   5.32 

Wetrnorc  v.  Carryl 435 


Sec. 

Wetmore  v.  Parker 437 

Wetter  v.  Habersham 174,  190 

V.   Walker    559 

Wetzel  V.  Firebaugh 72 

Weybriglit  v.  Powell 564 

Whall  V.  Converse 527,  563 

Wharton  v.  Barker 563 

Wharton's  Will    185 

Wheatland  v.  Dodge 555 

Wheeler   v.   Bent 434 

V.  Dunlap  510 

Wheeler's  Will  575 

Wheeloek's  Will   193 

Whetstine   v.   Wilson 453 

Whipple  v.  Eddy : . . .  168 

Whitcomb's  Estate    595 

White  V.  Allen 474 

V.  Briggs 537 

V.  British  Museum    326 

V.  Casten    395 

V.  Coram 484 

V.  Driver 110,  111,  189. 

V.  Fisk 519 

V.  Hicks 526 

V.  Howard 24 

V.  Institute  of  Technology..  477 

V.  Keller 562 

V.  Repton 367 

V.  Springeth 563 

V.  Starr 139 

V.  Underwood 529 

V.  Wager 57,  60 

V.  White 21,  26,  236,  606 

White's  Will..  162,  164,  233,  387,  393 

Whitebread   v.   Lord 531 

White  Home  v.  Heag 110 

Whitehorn    v.   Harris 537 

Whitpsides   v.  Whitesides 592 

Whitfield   V.   Langdale 516 

^\'^liting  V.   Whiting 607 

Wliiting's   Appeal    449 

Whiting's  Settlement   603 

Whitlock    V.   Wardlaw 248 

V.   Wardwell    220 

Whitman  v.  Moroy.177,  188,  10!?,  243 

Whitney  v.  Twombly 150,  161 


TABLE    OF    CASES    IIS"    VOL.    I. 


Ixxxi 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Whitney  v.  Olney 600,  501 

Whitney's   Will    312 

Whitsett  V.  Belue 126,  303,  306 

Whyte  V.  Pollock.  .255,  256,  277,  279 

Widmore    v.   Woodroffe 537 

Wiegel    V.    Wiegel 256 

Wikoflf'3  Appeal 280,  284,  314 

337,  450 

Wikk  V.  Wolley 488a- 

Wilbourn   v.    Shell 9,  256 

Wilbur    V.   Tobey 23,  35 

V.  Wilbur.  .  .  .  .  .174,  175,  244,  247  | 

Wilce  V.  Van  Anden 594,  610 

Wild's  Case   555 

Wilder   v.    Thayer 426: 

Wilenon  v.  Handlon 268  ' 

Wiley's  Estate   374 

Wilkins    v.   Allen 569,  587 

Wilkinson   v.   Adam 534 

V.  Joughin 224 

V.  Leland 295 

V.  Pearson ; 208 

V.  Service 120,   174,   185,  193 

V.  Wilkinson 604 

Wilkinson,  Re 526 

Will  V.  Sisters 356 

Willat,  Re    490 

Willbor,  Re    565 

Willey's   Estate    281 

Williams   v.    Ashton 435 

V.  Baptist  Church   595 

V.  Baker 60 

V.  Brice    29 

V.  Burnett    309 

V.  Campbell    19 

V.  Carson    28 

V.  Goude    112,  229 

V.  Oreen   560,  565a 

V.  Jones    389 

V.  Lewis    557 

V.  McComb    511 

V.  Miles   402,412,  437 

V.  Neff     529 

V.  Robinson. .  .174,  175,  ISO,  184 

V.Spencer    198,  208 

V.  Tolbert    268,  272 


Sec. 

WiUiams  v.  Syley 389,  398 

V.  Way    357 

v.  Williams  ...21,  263,  408,  415 

416,  445,  581 

Williams's    Succession    482. 

Williamson   v.   Grider 492a 

V.Williamson    466,  542 

Willing   V.   Baine 565 

Willis  V.  Hiscox 552,  600,  602 

V.  Lowe    311 

V.  Moot   327 

V.  Richardson    531 

Willis's   Will 554 

Willock  V.  Noble 46,  48,  50,  52 

58,  59 

Wills  V.  Cooper 495 

V.  Foltz    533 

V.  Palmer   551 

V.  Wills    541 

Wilmerding's   Will 328 

Wilmouth  V.  Wilmouth 478 

Wilson  V.  Bedard 303 

V.  Curtis    503 

V.  Fritts    20 

V.  Mitchell ...  68,  70,  78,  83,  84 

96,  136,  137,  141,  239 

V.  Moran     239 

V.  Turner    559 

V.  Wilson    413 

Wilson's    Appeal 225,  236 

Wilson,  Goods  of 217,  334,  335 

Wind  V.  Jekyle 29 

Wineland's  Appeal 312 

Wing  V.   Deans 56 

Wingfield  v.  Wingfield 547,  565 

Wingrove  v.   Wingrove 227 

Winkley  v.  Kaime 575,  580 

Winn,  Goods  of 287 

Winne  v.   Winne 453a 

Winslow  V.  Goodwin 28 

V.  Kimball    355 

Winter  v.  Dibble 535 

Wirth   v.    Wirth 426a 

Wistar  v.   Scott 535 

Witherspoon  v.  Witherspoon. . . .  26G 

WithinGjton   v.   Withington 349 


Ixxxii 


TABLE    OF    CASES    IN    VOL.    I. 


See  also  Table  of  Cases  in  Volume  II. 


Sec. 

Withy  V.  Mangles 543,  547 

Witt  V.   Gardiner 242 

Witter  V.  Mott 420,  445 

Wittman  v.  Goodhand.  .227,  229,  382 

Wolbert  v.  Beard 595 

Wolf  V.   Bollinger 431 

V.  Schoefner   512 

Wolffe  V.  Loeb 565 

Wolford  V.  Herrington 586 

Wollaston,    Re 59,  446 

Wombacher  v.  Barthelme 248 

Wood  V.  Bishop. . . .. 238,  239 

V.  Lane    67 

V.  Mitcham    479 

V.Roane    365,  456 

V.  Sawyer   283 

V.  Tredway    426 

V.  Trust   Co 303 

V.  White   2-20 

V.  Wood   414,  471,  483,  537 

Wood,  Matter  of 262,  268 

Wood,   Re 568 

Woodberry  v.  Obear 212 

Woodbury   v.   Hayden 597 

Woodfill  V.  Patton 393 

Woodhouse  v.  Balfour 347 

V.  Herrick    554 

V.  Meredith    495 

Woodington,    Re 311 

Woodley,  Goods  of 311 

Woodman  v.  Illinois  Bank 232 

V.  Woodman    525,  562 

Woodruff  V.  Midgeon 578 

V.  White    479 

V.  Woodruff    553 

Woods'  E-state 137,  138 

Woods   V.   Moore 516 

V.  Woods    595 

Woodward  v.  Camp 61 

V.  Goulstone    402,  403 

V.  JamoH   229,  540 

V.  Woodward     427 

Wooflward,  f.'oods  of 34."),  4.^0 

Woodward,   Re 389,  40) 

Woolcomb   V.    Woolfomb 51") 

\'.o>]lcy   V.    WooUey 347 


^KC. 

Woolmer's    Kstate 519 

Woolton  V.  Redd.  .  .243.  488.  579,  5:t4 

Worcester  v.  Worcester 529 

Worthington  v.  Klemm 317 

Wotton,  Goods  of 311 

Workman  v.  Cannon 476 

Worman,  Goods  of 53 

Wrench  v.  Jutting 514 

Wright  V.  Atkyns 537,  549 

V.  Denn.  .477,   479,   483,  498,  549 

V.  Hicks    479 

V.  Lewis    189,  342 

V.  Manifold    341 

V.  Methodist  Church 545 

V.  Rogers    347 

V.  Sanderson    322 

V.  Tatha.m 192,  193,   194,  202 

V.  Trustees   542 

V.  Vernnn     551 

V.  Wakeford    300 

V.  Wright   261,  327.  345 

431,  572 

Wright's  Estate 145,  149 

Wrightson  v.   Macaulay 563 

Wuesthpff  V.   Germania  Life  Ins 

Co 309 

Wyatt  V.  Berry 322,  327,  323 

V.  Sadler     483 

Wylde,   Re    566 

Wyche  v.  Clapp 460 

Wyeth  V.  Stone 542,  547 

Wyman  v.  Gould   200 

V.  Symmes     354 

Wyndham  v.  Chetwynd 35] 

V.  Wyndham   523 

Wynn  v.  Bartlett 507 

Wynne  v.   Hawkins 263 

V.  Wynne    486,  522,  599 

Wynch,  Ex  parte  557 

y. 

Yardley  v.  Cuthbertson 206,  245 

246,  247 

Yarnall's  Will    371,  374 

Yates  V.   Clark 558 

V.  Cole 220 


TABLE    OF    CASES    IN    VOL.    I. 


Ixxxiii 


See  also  Table  of  Cases  in   Volume  IL 


Yeaton  v.  Roberts. 
Yerby  v.  Yerby .  .  .  . 

Yess   V.   Yess , 

Y'glesias  v.  Dyke .  . 
Yoe  V.  McCord.  . .  . 
York  V.  Waller  .  . . 
Yost  V.  McKee .  .  .  . 
Young  V.  Bradley. 
V.  Ridenbaugh 
Younger  v.  Duffie . . 
Youngs  V.  Y'^oungs. 
Youngs'  Appeal     . . 


.236, 


Seo. 
532 
425 
246 
150 
229 
449 
478 
609 
68 
312 
524 
540 


Sec. 

Youngs   Will    313,  375 

Y'ouse  V.  Forraan 436 

Z. 

Zacharias   v.   Collis 38 

Zeisweiss  v.  James 24 

Zerega  v.   Percival 255 

Zein'a  Estate   3 

Zillmer  v.  Landguth 600,  602 

Zimmerman   v.   Hafer 479 

Zimmerman  v.   Zimmerman. 236,  281 


THE  LAW  OF  WILLS. 


PART  I. 

INTRODUCTORY  CHAPTER. 

NATURE    AND    ORIGIN    OF    TESTAMENTARY   DISPOSITION. 

§  1.  Definition  of  Will. 

A  will,  in  our  legal  sense,  is  the  solemn  disposition  of  one's 
property,  to  take  effect  after  death ;  ^  and  in  this  disposition  one 
fitly  contemplates  not  only  the  purposes  to  which  such  property 
shall  be  devoted,  but  the  person  or  persons  by  whom  those  purposes 
shall  be  executed,  or  carried  into  effect.^ 

The  will  being,  in  vernacular  speech,  that  faculty  by  which  we 
purpose  and  choose,  the  word  itself  comes  naturally  to  denote  the 
purpose,  the  choice  itself  as  fixed  upon,  and  hence,  in  our  present 
technical  sense  of  the  word,  the  authentic  and  final  declaration  of 
that  choice  or  purpose. 


1.  Bouvier  Diet.  "Will;"  Swin- 
burne Wills,  pt.  1,  §  2;  Godolphin, 
pt.  1,  c.  1,  §  2.  The  legal  declaration 
of  one's  intent  as  to  the  manner  in 
which  he  wishes  his  property  disposed 
of,  or  what  he  wishes  performed  after 
his  death.  Stinson's  Estate,  77  A. 
807,  228  Penn.  475;  Smith  v.  Smith, 
70  S.  E.  491,  112  Va.  205. 

2.  As  to  the  appointment  of  exe- 
cutors, see  Schouler  Executors  &  Ad- 
ministrators, §§  1030-1032  (Vol.  II). 
Swinburne  appears  to  have  considered 
that  the  naming  of  an  executor  was 
indispensable  to  the  validity  of  a 
will.  Swinb.  pt.  1,  §  3 ;  1  Redfield 
Wills,  6,  note.     But  modern  opinion. 


English  and  American,  is  quite  to  the 
contrary.  Schoul.  Exrs.  &  Admrs. 
§  1003  (Vol.  II);  93  N.  Y.  S.  1004. 
On  the  other  hand,  wills  in  modern 
times  are  frequently  made  for  the  ex- 
clusive purpose  of  naming  an  execu- 
tor; the  property  itself,  in  such  a 
case,  being  intended  to  go,  by  way  of 
descent  and  distribution,  as  if  no  will 
had  been  made.  Legislation  and  prac- 
tice provide  what,  in  each  respect,  the 
will  in  either  event  may  have  left 
wanting,  after  the  geneial  scheme 
which  public  policy  has  framed.  See 
Schoul,  Exrs.  &  Admrs.  §§  1122-1127 
(Vol.  II). 


§    2  THE   LAW    OF   WILLS.  [PAET    I. 

§  2.  Last  Will  and  Testament;  Testament  and  Testator. 

"Last  will"  or  "last  will  and  testament"  is  the  English  phrase 
used  from  the  earliest  times  as  peculiarly  appropriate  to  this 
solemn  disposition,  if  not  the  indispensable  means  of  denoting  it. 
And,  indeed,  it  should  be  observed  that  the  use  of  the  word  "will" 
alone  in  this  connection,  rather  than  "testament,"  is  confined  tO' 
England  and  the  countries  whose  language  and  jurisprudence  are 
derived  from  the  English  source.  "  Testament "  is  the  expressive 
word  which  the  Roman  civil  law  supplies  in  this  connection ;  *  the 
continental  jurists  make  use  of  no  other;  and  our  own  professional 
men,  British  and  American,  not  only  prefer  still  to  link  the  worda 
"will"  and  "testament"  together,  whenever  one  draws  up  a  writ- 
ten disposition  of  this  sort  for  a  client,  but  found  upon  the  Latin 
iestamentum  exclusively  the  secondary  forms  most  convenient  for 
discussing  our  general  subject.  He  or  she  who  makes  the  will  is 
to  this  day,  in  English  law,  the  "testator"  or  "testatrix,"  as  the 
case  may  be ;  one  dies  "testate,"  leaving  a  valid  will  at  his  death, 
or  "intestate"  without  one ;  we  speak  of  "testamentary  causes,"  a 
"testamentary  gift,"  a  "testamentary  guardian,"  and  "letters 
testamentary"  ;  while  "will,"  on  the  other  hand,  as  used  in  our 
law,  furnishes  not  a  single  derivative.^  In  brief,  "testament" 
comes  readily  to  hand,  coined  for  the  convenience  of  jurists  the 

4.  There  has  been  some  controversy  his  mivd  and   icill  in   relation  to   it.. 

as  to  whether  the  word  testamentum  Bouvier    Diet.    "Will;  "    2    Bl.    Com. 

is   strictly  derived  from   testatum  or  499. 

from  that  word  in  combination  with  That   "  testament "    as    an    English 

mentis.    Bac.  Abr.  "  Wills  and  Testa-  word     has     a     primary     fitness    here 

ments,"  A.;  Inst.  2,  10;  Co.  Inst.  Ill,  which   "will"   has    not.    is,   however^ 

322.      In   Webster's   Dictionary   "  tes-  obvious;       for     "testament"     is     de- 

tament  "  is  said  to  come  from  testari,  fined  as  the  formal  legal  declaration 

to  be  a  witness,   etc.,   from   testis,   a  or    expression    of   one's    "  will."      See 

witness.      And    see    2    Bl.    Com.    499.  "  Testament,"   Webster   &    Worcester. 

The  controversy  appears  to  be  of  lit-  The   civilians   do   not   seem   to   define 

tie  conKOfjnonce,  for  in  any  view  it  is  "  testament "  in  their  law  with   such 

the  final  declaration  of  the  person  in  precision.     Domat,  lib.  1.  tit.  1,  §  1; 

regard  to  the  disposition  of  his  prop-  Bouvier   "Testament." 

erty.     It   ifl  his  testimony  upon   that  5.  See  Bouvier   and  other   law   die* 

Buhject,  and  that  is  the  expression  of  tionaries  on  this  point. 


PART    I.]  INTRODUCTION.  §    3 

world  over;  but  "will,"  wliicli  is  at  best  a  secondary  medium  of 
expression,  does  not.  Blackstone  in  his  Commentaries  inclines 
plainly  to  a  choice  of  the  former,  while  regarding,  it  would  appear, 
the  two  words  as  in  substance  synonymous  f  other  English  author- 
ities drew  subtle  distinctions  between  "  will  "  and  "  testament," 
while  conceding,  at  least,  that  "  will "  or  "  last  will  "  were 
expressions  promiscuously  used  in  English  law.^  We  of  the 
present  day,  however,  may  fairly  treat  "  will,"  "  testament,"  and 
"  last  will  and  testament "  as  legal  terms  standing,  without  prac- 
tical difference,  for  one  and  the  same  thing. 

§  3.  Gift;  Devise;  Bequest. 

The  usual  phrase  of  testamentary  disposition  being,  "  I  give, 
devise,  and  bequeath,"  it  is  well  to  notice  the  significance  of  these 
several  words.  ''  Gift,"  in  our  law,  is  a  word  of  considerable 
scope,  corresponding  tx>  the  Roman  donatio  ;  it  embraces  all 
voluntaiy  transfers  of  property  without  consideration  f  and' 
appears  well  adapted  to  the  language  of  one's  last  will  and  testa- 
ment, inasmuch  as  the  ruling  motive  of  the  testator  is  to  confer 
of  his  own  free  will  and  gratuitously.  "  Devise  "  and  "  bequest" 
are  words  of  more  technical  constraint.  "  Devise,"  properly 
speaking,  is  a  gift  of  real  property  by  one's  last  will  and  testa- 
ment; and  cannot  with  legal  precision  be  applied  to  things  per- 
sonal.^   "  Bequest,"  on  the  other  hand,  is  a  gift  by  will  of  personal 

6.  2  Bl.  Com.  489  et  seq.^,  chapter  professional  men  were  much  inclined 
on  "Title  by  testament  and  adminis-  to  narrow  the  definition  of  a  Inst  will 
tration."  and    testament,    so   as    to    apply    the 

7.  See  Bac.  Abr.  "  Wills  and  Testa-  term  to  personal  pi  operty,  using 
ments,"  A;  Co.  Inst.  111.  Here  it  is  "devise"  where  real  estate  was  oper- 
said  that  by  the  common  law,  where  ated  upon.  For  a  devise  of  lands  was 
lands  or  tenements  are  devised,  it  is  treated  at  the  common  law  not  so 
properly  called  a  last  will;  and  where  much  in  the  nature  of  a  testament  a3 
it  concerns  chattels  only,  a  testament.  a  sort  of  conveyance  by  v;ay   of  ap- 

8.  2  Schoul.  Pers.  Prop.  3d  Ed.  §  pointment  of  particular  lands  to  a 
54;  Bouv.  Diet.  "Gift,"  "Donation;"  particular  devisee.  Harwood  v.  Good- 
Schoul.  Exrs.  &  Admrs.  §  1368  (vol.  right,  Cowp.  90,  per  Lord  Mansfield; 
II).  1   Wms.   Exrs.    7th   Ed.    6.      But   the 

9.  Bouv.  Diet.  "  Devise."     Formerly  more   general   and   popular   definition 


§    5  THE    LAW    OF    WILLS.  [PAET    I. 

property :  and  tlie  word  is  inappropriate  where   the   disposition 
relates  to  real  estate/ 

Out  of  favor  to  the  manifest  intent  of  a  testator,  as  shown  by 
the  context  of  the  will,  courts  will  often  in  these  modern  days 
construe  "  bequest  "  into  ''  devise,"  and  vice  versa,  notwithstand- 
ing verbal  inaccuracies  of  this  kind  f  and  yet,  wherever  disposi- 
tion is  intended  of  real  and  personal  property  in  combination,  the 
phrase  "  devise  and  bequeath  "  or  "  give,  devise  and  bequeath  "  is 
certainly  the  more  elegant,  as  well  as  the  more  accurate  and  com- 
prehensive expression  to  use,  when  drawing  up  a  will. 

§  4.  Property:    Real,  Personal  and  Mixed. 

Once  more,  a  will  which  aims  at  some  comprehensive  disposition 
of  property  in  combination,  is  often  drawn  as  embracing  "  all  m}' 
property,  real,  personal  and  mixed.  "  We  need  not  point  out  the 
distinction  between  real  and  personal  property  in  the  present  vol- 
ume; but  shall  only  observe  that  "mixed  property,"  so  called, 
relates  to  that  kind  of  property  such  as  heirlooms  and  fixtures, 
which  the  law  does  not  easily  assign  to  the  class  exclusively,  of  real 
or  personal  ;  being,  so  to  speak,  a  compound  of  both,  or  at  the 
border  line  of  division.^ 

§  5.  Legacy. 

That  gift  or  disposition  which  comes  to  a  survivor  through  one's 
last  will  is  widely  denoted  as  a  "  legacy."  The  tenn  is  more  com- 
monly applied  to  money  or  other  personal  property,  in  this 
connection,  than  to  real  estate  ;  but  "  devise  "  standing,  already, 
as  we  have  shown,  in  technical  contrast  with  "  bequest "  to  mark 
a  distinction,  this  word  "  legacy  "  acquires  readily  a  popular  sense, 
which  regards  rather  the  value  of  the  gift  than  the  elements,  real 

of  a  last  will  and  tcst;unent  embraces  2.  Schoul.   Exrs.  &   Admrs.   §    1004 

l)otli    real    and    personal    property    as  (vol.  II). 

ahuve.     See  4  Kent  Com.  502.  3.  2  Sharsw.  Blackstonc  Com.  428; 

1.  Boiiv.      Dipt.     "  Bequest."       See  §§  28,  29,  post;  1  Schoul.  Pers.  Prop. 

ZienN    Kstnte,    134    N.    W.    498,    117  §§  94,  111. 
Minn.   178. 


TART    I.]  INTRODUCTION.  §    7 

or  personal,  of  which  it  may  happen  to  be  composed.*  Unlike 
''  bequest,"  moreover,  the  word  "  legacy "  has  a  corresponding 
word  "  legatee,"  to  designate  the  person  taking  under  the  will." 

§  6.  Wills,  Written  and  Unwritten,  or  Nuncupative. 

Wills  or  testaments  are  of  two  kinds,  written  and  unwritten  ; 
the  latter  being  also  designated  in  law  as  verbal  or  nuncupative.® 
Nuncupative  wills  or  testaments  (which  have  a  place  in  the  Roman 
civil  law)  are  so  called  from  nuncupare,  to  name,  declai'e  or  make 
a  solemn  declaration,  because  the  testator  declares  his  will  in 
extremis  before  a  sufficient  number  of  witnesses  whose  oral  proof 
must  afterwards  establish  it.  These  verbal  wills  offer  great 
temptation  to  fraud  and  perjury,  besides  occasioning  much  honest 
error,  and  the  need  of  them  lessens  as  the  art  of  penmanship  be- 
comes more  universal  and  writing  materials  abound.  The  Statute 
of  Frauds,  29  Car.  II.  c.  3,  laid  them  under  various  restrictions ; 
and  the  tenor  of  legislation,  English  and  American,  at  the  present 
day  is  to  invalidate  them  altogether,  except  as  to  soldiers  in  actual 
military  service  and  mariners  at  sea,  or  where,  perhaps,  the  amount 
of  property  is  trivial  ;  and  at  all  events  to  wills  of  personalty 
alone.^ 

§  7.  Codicils,  or  Postscripts  to  Wills. 

A  codicil  is  in  modern  practice  a  sort  of  postscript  to  a  will, 
being  an  exposition  of  the  testator's  afterthought.^     This  word  is 

4.  Schoul.  Exrs.  &  Admrs.  §  1459  courts  in  these  days,  so  as  to  exclude 
(vol.  II);  Bouv.  Diet.  "Legacy;"  the  testator's  obvious  intent.  Ladd 
Wms.  Exrs.  1051.  v.  Harvey,  1  Fost.    (N.  H.)    514.  The 

5.  This  is  admitted  in  1  Redf.  word  "  legatee "  has  even  been  con- 
Wills,  6,  though  the  learned  author  strued  to  mean  "  distributee "  in  a 
appears  to  prefer  "bequest"  as  the  will  out  of  regard  to  this  same  ob- 
convenient  term  for  general  use.  vious  intent  of  a  testator.  Laller- 
From  what  we  have  said  in  the  text  stedt  v.  Jennings,  23  Ga.  571. 

(§§   2,   3)    the   reader  perceives   that  6.  2  Bl.  Com.  500. 

technical  accuracy  in  the  use  of  these  7.  See  Nuncupative  Wills,   §§   359- 

words,  "devise,"  "legacy,"   and  "be-  379.  post. 

quest,"    is    not    insisied    on    by    our  8.  By  this  is  not  meant  that  a  codi- 


§    7  THE    LAW    OF    WILLS.  [PAKT    I. 

derived  from  the  Latin  word  codicillus,  which  is  a  diminutive  of 
codex,  and  literally  imports  a  little  code  or  writing — a  little  will. 
Codicils  came  into  our  law  from  the  Roman  jurisprudence,  but 
with  an  earlier  significance  quite  different  from  that  which  modem 
usage  attaches  to  them.^  As  Blackstone  has  observed,  the  codicil 
is  tlie  testator's  addition  annexed  to,  and  t-o  be  taken  as  part  of 
the  testament  ;  "  being  for  its  explanation,  or  alteration,  or  to 
make  some  addition  to,  or  else  some  subtraction  from,  the  former 
dispositions  of  the  testator."^  He  adds  that  the  codicil  may  be 
either  written  or  nuncupative.^  In  short,  the  codicil  is  part  of  the 
will,  and  the  last  will  and  codicils  constitute  one  testamentary 
disposition. 

But  the  objection  to  which  all  nuncupative  instruments  are 
liable  applies  equally  to  an  oral  codicil  or  an  oral  will.  And  under 
our  modern  rules  of  legislation  the  codicil  or  any  later  testament 
should  be  not  only  expressed  in  writing  but  executed  with  the 
same  solemnity  as  an  original  instrument.^  Hence,  as  codicilg 
are  apt  at  all  times  to  cumber  the  construction  of  testamentary 
intent  as  well  as  increase  the  cost  and  trouble  of  probate,  a  testator 
of  sound  and  vigorous  mind,  whose  ideas  of  disposition  are  simple, 
will  generally  do  well  to  destroy  the  earlier  will  and  make  a  clean 
one,  as  his  testamentary  intention  changes,  in  preference  to  tacking 
amendments  one  after  another  to  the  instrument  first  executed. 

cil   is   necossarily  on   the   same   'ilieet  same    effect;     namely,    as    though    it 

of  paper  with  the  original  will  or  an-  were  a  will  which  appointed  no  exe- 

nexed  to  it  in  any  way.     It  may  bo  a  cutor.       Swinb.  pt.   1,   §   5.    But  our 

separate  instrument,  like  any  will  of  true  modern  definition  is  as  stated  in 

later  execution.  the  text.     See  Bouv.  Diet.  '•  Codicil." 

9.  In  the  Roman   civil   law,  "  codi-  1.  2  Bl.   Com.   500;    Godolph.  p.   1, 

cil  "  is  defined  as  an  act  which  con-  c.  1,  §  3. 

tains     dispositions  of     property      in  2.  2    Bl.    Com.    500.         And    see    1 

prospect  of   death   without   the   insti-  Wms.  Exrs.  8. 

tution      of     an      heir      or      executor.  3.  4  Kent  Com.  531;  Tilden  v.  Til- 

Doniat,   Civil    Lnw,    p.    ii.    b.    iv.   tit.  den,  13  Cray,  103;   Fuller  v.  Honker, 

1.  §   1.     So,  too,  early  English  writ-  2  Ves.  Sen.  242.     See,  furtlier,  as  to 

er.s    upon    wills,    Swinburne,    for    in-  Codicils,  post. 
fitanfp,  diTined  a  colicil  to  much  the 


I'AET    I.]  INTRODUCTION.  §    9 

§  8.  "  Will "  includes  "  Codicil." 

The  word  "  will  "  being  the  generic,  legal  provisions  relating  to 
wills,  such  as  their  execution  and  personal  capacity,  should  be 
understood  in  general  to  embrace  codicils.  And  in  our  modern 
legislation  upon  wills,  that  no  doubt  may  remain  on  this  point, 
it  is  not  uncommonly  stated  expressly  that  the  word  "  will  "  shall 
include  "  codicils."* 

§  9.  Testaments  in  the  Civil  Law ;  Special  Kinds ;  Mystic,  Holo- 
graph, etc. 

Besides  the  nuncupative  testament,  the  civil  law  still  recognizes 
various  kinds,  derived  for  the  most  part  from  the  Roman  code, 
which  have  no  footing  in  the  jurisprudence  of  England  and  the 
United  States.  Two  species,  however,  deserve  a  mention,  which 
French  and  Spanish  founders  introduced  into  the  system  of 
Louisiana  before  its  incorporation  with  the  American  Union.  One. 
is  the  "  mystic  testament,"  which  consists  principally  in  enclosing 
one's  instrument  of  disposition  in  an  envelope  and  sealing  it  in 
presence  of  witnesses.^  The  other  is  the  "  holographic  (or  olo- 
graphic) testament,"  which  is  written  wholly  by  the  testator  him- 
self. Under  our  later  codes  this  must  be  entirely  written,  dated, 
and  signed  by  the  testator's  own  hand ;  and  being  so  prepared,  it 
speaks  for  itself  in  some  jurisdictions  as  declaring  his  last  will, 
so  as  to  be  suJbject  to  no  formality  of  witnesses;  ^  and  in  any  case 
it  affords  strong  proof  of  genuineness. 

4.  Bayley   v.    Bailey,    5   Cush.   245.  5.  La.  Civ.  Code.  art.  1577-1580;   5 

And  see  the  English  statute  of  wills  Mart.  La.  182.     The  envelope  may  be 

(1  Vict.  c.  26)    to  the  effect  that  in  simply  closed  with  mucilage.     48  La. 

interpretation  the  word  "will"  shall  Ann.  236;   19  So.  275. 

extend  to  a  testament,  and  to  a  codi-  6.  La.    Civ.   Code,    art.    1581;    Wil- 

cil,   and   to   an   appointment   by   will  bourn  v.  Shell,  59  Miss.  205;  42  Am. 

or  by  writing  in  the  nature  of  a  will  Rep.     363.        And     see     Bouv.     Diet, 

in  exercise  of  a  power;   also  to  cer-  "Testament;"     Part     III.     post;     4 

tain       testamentary        guardianships  Kent  Com.  519,  520. 
stated,  and  "  to  any  other  testamen- 
tary disposition." 


§     11  THE   LAW    OF    WILLS.  [pART    T. 

§  10.  When  a  Will  or  Testament  comes  into  Force;  Revocation 
and  Alteration. 

A  will,  though  executed  in  one's  lifetime,  acquires  no  force  as 
such  until  after  the  death  of  the  testator.  It  may,  therefore,  be 
revoked  or  cancelled  as  well  as  altered  by  the  testator  at  any  time 
during  his  life,  provided  the  intent  and  the  suitable  act  concur.^ 
For  every  testament  is  consummated  by  death,  and  until  he  dies,  the 
will  of  a  testator  is  ambulatory.^  It  follows  that  if  the  testator 
leave  two  or  more  inconsistent  testaments  behind  him,  the  last 
executed  shall  prevail  to  the  exclusion  of  every  earlier  one.^ 

This  ambulatory  quality  of  a  will  has  been  often  pointed  out 
as  its  prominent  characteristic,  distinguishing  it,  in  fact,  from 
ordinary  dispositions  by  a  living  person's  deed,  which  might,  in- 
deed, postpone  beneficial  possession  or  even  a  vesting  until  the 
death  of  the  disposer,  and  yet  would  produce  such  postponement 
only  by  its  express  terms  under  an  irrevocable  instrument.^ 

§  11.  Effect  of  a  Subsequent  Statute  upon  One's  Will. 

"  A  will,"  it  is  said,  "  does  not  take  eifect,  nor  are  there  any 
rights  acquired  under  it,  until  the  death  of  the  testator  ;  and  its 

7.  See  Revocation  of  Wills,  etc.,  lish  Wills  Act:  "Every  will  shall 
§§  380-450,  post.  be   construed,   with    reference   to   the 

8.  '■  A'am  omne  testamentum  morte  real  estate  and  personal  estate  com- 
consummatuni  est;  et  voluntas  testa-  prised  in  it,  to  speak  and  take  ef- 
ioris  est  ambulatoria  usque  ad  mor-  feet  as  if  it  had  been  executed  im- 
tem."  Co,  Litt.  112;  2  Bl.  Com.  502.  mediately  before  the  death  of  the 
"  For  where  a  testament  is,  there  testator,  unless  a  contrary  intention 
must  also  of  necessity  be  the  death  shall  appear  by  the  will."  Act  1 
of  tlie  testator.  For  a  testament  is  of  Vict.  c.  2G,  §  24 ;  2  Jarm.  Wills, 
force   after   men  are  dead:   otherwise  854. 

it  is  of  no  strength  at  all  while  the  9.  Litt.  §  168;   2  Bl.  Com.  502. 

testator  liveth."     Hebrews  ix.  vs.  16,  1.  1   Jarm.    Wills,    17;      Brown   v. 

17.       A     will     is     ambulatory     even  Betts,  9   Cow.  208;   Wait  v.  Belding, 

though     expressed     as     "  final  "     or  24   Pick.    136.       Even  though   a   will 

"last."        Wallace     v.     Wallace,    137  should  in  terms  be  made  irrevocable, 

N.   Y.   S.  43.  the   testator   may   revoke   it.       8    Co. 

See,  too,  the  language  of  tlie  Eng-  82a. 


PART    I.] 


INTEODUCTION. 


11 


construction  and  validity  depend  upon  tJie  law  as  it  then  stands." 
Hence  it  follows  that  "  a  statute  passed  after  the  making  of  a 
will,  but  before  the  death  of  the  testator,  by  which  the  law  is 
changed,  takes  effect  upon  the  will."  ^  Nevertheless,  a  retroactive 
effect  should  not  be  given  by  such  later  statute  to  an  earlier  will 
as  to  render,  by  the  mere  force  of  a  new  rule  of  construction,  a 
different  disposition  imder  that  will  from  what  the  testator 
obviously  intended  ;  ^  especially  if  the  legislation  manifested  no 
retroactive  intention. 

On  the  other  hand,  however  it  may  be  as  to  the  legal  operation 
of  a  valid  will  upon  one's  property,  the  rule  is  that  if  the  testator 
was,  at  the  date  of  making  the  will,  without  testamentary  capacity, 
as  in  the  case  of  a  married  woman,  a  subsequent  statute  which 


2.  Eastman,  J.,  in  Wakefield  v. 
Phelps,  37  N.  H.  295.  This  state- 
ment appears  inaccurate;  though 
the  decision  was  simply,  in  effect, 
to  render  the  wife's  devise  of  real 
estate  to  her  husband  inoperative, 
where  a  later  act,  in  force  at  her  de- 
cease, pronounced  her  incapable  of 
devising  land  to  her  husband,  while 
at  the  time  of  making  the  devise  the 
statute  recognized  her  general  capac- 
ity. After-acquired  lands  will  pass, 
if  such  clearly  appears  to  have  been 
the  testator's  intention,  under  a  local 
statute  to  this  effect,  which  was  en- 
acted after  the  will  was  made  though 
before  the  testator's  death.  Gush- 
ing V.  Aylwin,  12  Met.  169;  Bishop 
V.  Bishop,  4  Hill,  138;  Smith  v.  Ed- 
rington,  8  Cr.  66.  See  preceding  sec- 
tion. 102  N.  Y.  S.  80S;  Kopmeier 
Re,  89  N.  W.  134,  113  Wis.  233. 

3.  This  statement  appears  to  recon- 
cile Carroll  v.  Carroll,  16  How.  275 
(in  construction  of  the  Maryland 
statute  concerning  after-acquired 
lands)    with    the   cases   cited    in    the 


preceding  note.  See  language  of  Mr. 
Justice  Curtis,  ib.  283,  distinguish- 
ing Cushing  V.  Aylwin.  supra,  and 
the  broader  terms  of  the  Massachu- 
setts statute;  also  Smith  v.  Edring- 
ton,  supra.  And  see  15  Conn.  274; 
Battle  V.  Speight,  9  Ired.  288;  Mul- 
lock V.  Sonder,  5  W.  &  S.  198.  Wills 
are  governed  as  to  their  operation 
upon  after-acquired  lands  by  the  law 
in  force  at  the  date  of  execution  and 
not  by  that  in  force  at  the  testator's 
decease.  Gable  v.  Daub,  40  Penn.  St. 
217. 

As  to  the  husband's  interest  in  a 
legacy  to  his  wife,  the  rule  of  Wake- 
field V.  Phelps,  supra,  is  in  New 
Hampshire  applied  in  Perkins  v. 
George,  45  N.  H.  453.  A  husband 
whose  wife  dies  after  the  passage  of 
a  statute  extending  one's  right  to 
take  real  estate  in  fee  as  a  surviving 
spouse,  cannot  deprive  him  of  such 
right  by  her  will  made  previously, 
to  which  he  has  not  assented.  John- 
son V.  Williams,  152  Mass.  414,  25 
N.   E.    611. 


§  13  THE  LAW  OF  WILLS.  [PAET  I. 

comes  into  force  and  remains  so  at  tlie  time  of  her  death  will  not 
turn  the  invalid  testament  into  a  valid  one/  And  in  general  the 
legality  of  the  execution  of  a  will  should  be  judged  of  by  the  law 
^s  it  was  when  it  was  executed,  and  not  as  it  was  at  the  death  of 
the  testator.^ 

§  12.  Origin  of  Wills;  Natural  Law  of  Succession. 

A  few  words  as  to  the  origin  of  wills  are  here  appropriate. 
Upon  this  subject  history  preserves,  indeed,  but  very  little.  Writers 
upon  natural  law,  it  is  true,  conceive  of  a  primitive  state  of  society, 
where,  property  vesting  by  common  consent  in  the  individual 
under  the  right  of  occupancy,  that  right,  nevertheless,  continued 
in  the  occupier  only  while  he  lived.  But  strife  and  confusion  at 
the  awful  moment  of  religious  rites  and  burial  must  have  seemed 
intolerable  even  to  barbarians  of  the  basest  type  ;  and  decency  soon 
framed  a  system  by  which  the  title  of  the  dead  proprietor  descended 
at  once,  and  with  it,  most  probably,  the  responsible  management 
of  the  funeral.^     For  the  progress  of  individual  ownership  and 

4.  Kurtz  V.  Saylor,  20  Penn.  St.  this  course  must  be  observed  or  the 
209.  See  also  Dwarris  Stat.  685,  will  is  invalid,  notwithstanding  a 
179  Penn.  St.  580,  57  Am.  St.  Rep.  subsequent  change  of  the  statute. 
516,  36  A.   344.  Lane's    Appeal,    57    Conn.    182.        In 

5.  Mullen  v.  McKelvy,  5  Watts.  this  last  mentioned  case  the  whole 
399;  Prec.  Ch.  77;  Amb.  550;  3  Atk.  subject  is  discussed,  and,  while  the 
551.  rule  of   our   text   is   sustained,   it    is 

A  statute  which  changes  the  rules  admitted   that   the   few   decisions    ot 

of  evidence  relating  to  the  execution  American  courts  are  not  harmonious; 

of   wills   has   no    retrospective   opera-  South   Carolina   and  Georgia  seeming 

tion;   and  a  will   must  be  proved   as  to  take  a  contrary  view.      3  McCord, 

the   law   required   at   the   date  of   its  491;   43  Geo.  142.      Of  course,  if  the 

execution.       Giddings   v.   Turgeon,  58  local    statute   expressly   reserves     the 

Vt.  106.    As  where  a  will  at  the  date  validity  of  former  wills,  the  point  is 

of  execution  was  invalid  if  one  of  the  clear.      1  Bradf.   (N.  Y.)   252. 
tliree    witnesses    was    husband    of    a  6.  Puffcndorf      Law      of      Nations, 

legatee,    and     the    legislature    .after-  Book  4,  c.  10;   2  Bl.  Com.  490.  "The 

■wards  changed  the  rule.     lb.     Whore  law  of  very  many  societies  has,  there- 

a  statute  in  force  when  the  will  was  fore,  given  to  the  proprietor  a  right 

exffiiled    nquired    witne^se??    to    sub-  of  continuing  his  property  after    his 

ficribi;   in   tlie  presence  of  eacli   other,  death,    in    such    persons    as    lie    shall 

10 


PART    I.]  INTRODUCTION.  §    13 

succession,  as  fundamental  ideas  of  primitive  society  contrasted 
with  occupancy  for  a  lifetime,  we  may  well  conceive  of  these  three 
stages:  (1)  Appropriation  by  government,  that  is  to  say,  by  the 
strongest  survivor  surrounding  the  deceased,  whether  as  trustee 
for  the  common  society,  or  rather  in  the  semblance  of  an  armed 
<*hieftain  grasping  for  himself  and  his  line,  (2)  The  promulgation 
of  a  general  scheme  by  that  government  or  that  chieftain  in  obed- 
ience to  the  profound  affections  of  the  individuals,  whereby  the 
inheritance  vested  in  a  member  or  members  of  the  decedent's  own 
family.  (3)  RecogTiition  of  a  right  in  the  individual  owner  to 
dispose  of  the  title  at  his  own  choice  and  in  variance,  if  need  be, 
of  the  usual  rules  of  inheritance.  In  this  last  recognition  by 
society  lies  the  sanction  of  a  will  ;  and  this  sanction  reaches  its 
refinement  when  we  find  the  dead  proprietor's  wishes  so  far 
respected  by  the  government,  by  his  fellow-men,  that  he  may  safely 
xiisinherit,  or  transmit  to  strangers,  or  provide  for  the  default  of 
his  own  kindred,  or  bestow  at  pleasure  upon  selected  objects  of 
-charity,  by  the  formal  declaration  of  his  last  wishes  to  that  effect. 
And  yet,  as  leading  up  to  such  a  conclusion,  we  should  remark,  that 
from  the  moment  that  the  doctrine  and  practice  of  transfers  of 
property  inter  vivos  by  way  of  gift,  sale,  or  bailment  became 
•established,  men's  minds  were  prepared  for  recognizing  a  trans- 
mission of  title  beyond  the  span  of  any  occupant's  own  life.  If, 
moreover,  the  owner  could  not  lawfully  make  a  testamentary  dis- 
position, he  might,  when  dying,  with  full  opportunity  to  do  so, 
■divide  his  property  among  those  who  stood  at  his  bedside,  and 
thus  dispose  of  it  sui  juris,  without  a  strict  succession  at  all. 

§  13.  Origin  of  Wills;  Historical  Views  of  Succession. 

But,  setting  aside  theories  of  social  progress,  whatever  authen- 

name;  and  in  defect  of  such  appoint-  sons."     2  Bl.  Com.  490.     The  former 

ment   or   nomination,     or    where    no  method  of  acquiring,   as   the  learned 

nomination   is  permitted,   the  law  of  commentator  adds,   is  called  a  testa- 

*very  society  has  directed  the   goods  ment,    the    latter    an   administration, 

to  be  vested  in  certain  particular  in-  lb. 
dividuals,  exclusive  of  all  other  per- 

11 


§    13  THE    LAW    OF    WILLS.  [PAET    I. 

tic  history  teaches  us  of  the  origin  of  the  human  race,  confirms  the 
opinion  that  the  practice  of  allowing  the  owner  of  property  to  direct 
its  destination  after  his  death,  or  at  least  of  imposing  general  rules 
of  inheritance,  is  coeval  with  civilization  itself  and  so  close,  in  fact, 
upon  the  origin  of  property  and  property  rights,  as  not  to  be  essen- 
tially separated  in  point  of  antiquity.  To  take  the  Sacred  Writ- 
ings for  instance.  The  first  rule  was  exercised  by  a  founder  over 
his  own  family.  The  patriarch  gave  his  dying  blessing,  and,  as 
it  would  appear,  transmitted  his  own  property  to  his  descendants, 
regulating  the  inheritance  at  discretion  ;  at  all  events,  he  was 
familiar  with  some  scheme  of  inheritance  which  provided,  not  only 
for  children  or  kindred,  but  for  the  contingency  of  their  failure.^ 
Abraham,  our  earliest  type  of  the  prosperous  father  of  a  family, 
amassing  property  in  the  midst  of  a  civilized  and  peaceful  society, 
who  journeyed  to  Egypt,  who  grew  very  rich  in  cattle,  servants, 
silver  and  gold,  who  paid  out  his  thousand  pieces  of  silver  for  a 
piece  of  land,  and  was  respected  far  and  wide  as  a  man  of  wealth, 
is  seen  considering,  while  childless,  who  would  be  his  heir,  and 
after  rearing  children  late  in  life  and  marrying  more  than  once, 
giving  all  that  he  had  to  his  oldest  legitimate  son,  Isaac,  at  his 
death,  and  sending  the  sons  of  his  concubines  away  with  gifts. 
Isaac  gives  his  death-bed  blessing  to  the  younger  son  by  an  error 
which  he  refuses,  upon  discovering  it,  to  retract.^  Jacob  bequeaths 
to  his  son  Joseph  a  portion  of  his  inheritance  double  to  that  of  his 
brethren.^  All  of  these  seem  to  afford  instances  of  death-bed  dis- 
position at  patriarchal  discretion  ;  though  Blackstone  and  other 
writers  fasten  upon  that  of  Jacob  alone  as  the  more  authentic, 
and  perhaps  the  earliest  recorded  instance  of  the  early  use  of 
testaments.^    That  verbal  testaments  preceded  written  ones  is  alto- 

7.  Gen.  cs.  xiii,  xv,  xxv.  upon  Gen.  c.  xv,  and  alluding  to  the 

8.  Gen.  c.  xxvii.  This  indicates  fanciful  relation,  by  Eusebius  and 
Jiow  much  solemnity  was  attached  others,  of  Noah's  testament,  made 
to  the  death-bed  utterances  by  the  in  loriting,  and  witnessed  under  his 
patriarch  who  made  them.  seal,  whereby  he  disposed  of  the  wliole 

9.  Gen.   c.   xlviii.  world.      See  Gen.  c.  x. 


1.  2  Hi.  Com.  400,  491,  commenting 


12 


PART    I.]  INTRODUCTION.  §    13 

gether  likely.  And  this  very  word  "  testament,"  which  came  down 
to  us  with  the  most  sacred  of  associations,  means,  as  a  New  Testa- 
ment writer  argues,  not  a  mere  covenant  of  God  with  the  living, 
but  something  symbolical,  which,  like  all  testaments,  requires  death 
or  the  dedication  of  blood,  to  give  it  effect.^ 

If  wc  turn  to  the  Vedas,  the  oldest  authority  for  the  religious 
and  social  institutions  of  the  Hindoos,  the  result  is  not  different. 
Whether  these  ancient  hymns,  imperfect  as  must  be  their  testi- 
mony, offer  plain  instances  of  a  disposition  by  testament,  Sans- 
crit scholarship  must  determine;  but  certainly  they  depict  a 
society  where  laws  of  succession  as  well  as  of  transfer  inter  vivos 
are  in  full  force,  and  the  male  issue  (not  wholly  perhaps  excluding 
the  daughters)  inherit  and  at  the  same  time  perform  the  funeral 
rites.^  Homer's  Iliad,  once  more,  furnishes  fair  illustrations  of 
oral  testament  and  bequest,  as  well  as  of  inheritance,* 

Respect  for  fundamental  rules  of  inheritance  may,  nevertheless, 
have  prevailed  in  various  countries  and  ages  as  against  the  free 
license  of  a  testamentary  disposition.  "  Solon,  "  observes  Black- 
stone,  "  was  the  first  legislator  that  introduced  wills  into  Athens  "  ; 
and  he  adds  that  in  many  other  parts  of  Greece  they  were  totally 
discountenanced  ;  that  in  Rome  they  were  unknown  till  the  laws 
of  the  Twelve  Tables  were  compiled  ;  and  that  among  the  northern 
nations,  particularly  among  the  Germans,  testaments  were  not  re- 
ceived in  use.^  Whether  all  this  exclusion  was  absolute  or  only 
partial,  and  whether  there  might  not  have  been  peraiitted  in  some 
of  these  excepted  instances  a  testamentary  disposition  of  a  certain 
sort,  approximating  a  death-bed  gift,  especially  if  just  in  itself, 
i^  is  not  our  province  to  inquire.  Certainly  the  practice  of  trans- 
ferring what  one  owns  so  as  to  take  effect  by  one's  direction  after 
death  seems  so  reasonable  and  natural  of  itself  that  we  may  well 

2.  Hebrews  ix,  vs.   16-lS.  5.  2   Bl.   Com.   491;   Plutarclrs   So- 

3.  2  Wilson's  Rig-Veda  Sanliita,  Ion;  Pott.  Antiq.  1.  4,  c.  15;  Inst.  2, 
xvii.  22,    1;    Tacitus    De    Mor.    Germ.    21, 

4.  See,  e.  g.,  as  to  Patroclus,  Iliad,  cited   ib. 
23d  book,  lines  90-93,  250-255,  Chap- 
man's translation. 

13 


§  14  THE  LAW  OF  WILLS.  [pAET  I. 

conceive  that  it  has  existed  always  and  everywhere  in  civilized 
society,  with  rare  exceptions  ;  though  it  would  not  be  strange  if 
rude  and  property-despising  people,  like  the  ancient  Germans  and 
the  Spartans  under  Lycurgus,  condemned  it.®  But  so  far  as  the 
operation  of  wills  as  such  and  in  disregard  of  civil  rules  of  inheri- 
tance is  concerned,  we  may  agree  with  the  standard  commentator 
of  English  law,  that  even  where  the  individual's  right  to  make  a 
will  is  permitted  by  law,  "  it  is  subjected  to  different  formalities 
and  restrictions  in  almost  every  nation  under  heaven."'  We  should 
add,  however,  that  the  formalities  and  restrictions  which  refined 
nations  still  impose  upon  this  individual  right  are  placed  there 
chiefly  in  order  to  prevent  a  testator  from  unjustly  discriminating 
against  those  of  his  own  immediate  family,  or  else  for  warding  off 
in  the  courts  a  false  interpretation  as  to  what  his  last  will  really 
was  ;  in  either  case  fairly  but  not  violently  upholding  the  general 
laws  of  inheritance  against  unnatural  caprice  and  fraud. 

§  14.  Origin  of  Wills  in  England. 

In  England  the  individual  right  of  testamentary  disposition  has 
been  recognized  from  the  earliest  times  ;  and  a  passage  in  the  old 
law  before  the  Conquest  indicates  that  a  Saxon  nobleman  would 
hardly  have  died  intestate  unless  carelessness  or  sudden  death  pre- 
vente-d  him  from  making  his  will.^  Nevertheless,  there  is  good 
reason  to  believe  that  the  right  of  inheritance  was  firmly  established 
in  our  mother-country  earlier  than  that  of  disposition  by  will  ; 
tliat  until  times  comparatively  modem,  one's  testamentary  right 
remained  obstructed  by  certain  arbitrary  rules  of  distribution,  as- 

6.  "  Tlie   gpnoral    int(>rpsts   of   soci-  domestic    afTections,    has    sufficiently 

ety,  in  its  career  of  wealtli  and  civi-  guarded   against   any  great   abuse  of 

lization,   seem   to   require   that   every  the    power    of    testamentary     disposi- 

man  should  have  the  free  enjoyment  tion,     hy    connecting   our   hopes    and 

and  disposition  of  his  own  property;  wishes  witli  the  fortunes  of  our  pos- 

for   it   furnislics  one  of  t!ie  strong  st  terity."     2  Kent  Com.  502. 

motives     to     industry     and    economy.  7.  2  VA.  Com.  491. 

Tlio  law  of  our  nature,  hy  placing  us  8.   2     1?1.     Com.     491,    citing,      LL. 

uiid<r  the  irresiHtihle  iiilliience  of  tiie  Cainit.    c.    68. 

14 


PAET    I.]  IXTEODUCTION".  §    15 

to  his  personal  property,  which  the  Crown  and  Church  were  in- 
terested to  uphold.  Thus,  in  the  reign  of  Henry  II.  one-third 
part  only  of  one's  personal  property  could  be  willed  away.  For, 
according  either  to  common  law  or  custom  (it  is  doubtful  which), 
the  widow  and  children  long  had  their  "  reasonable  parts  "  or 
thirds  in  the  goods  and  chattels  of  the  deceased,  so  that  unless  one 
died  without  either  wife  or  issue  surviving,  the  whole  could  not  go 
according  to  his  own  disposal.®  Though  leaving  a  will,  he  was 
bound  to  remember  his  lord  and  the  Church ;  but  if  he  died  intes- 
tate, the  Crown  and  the  ordinary  remembered  themselves ;  making 
very  free,  in  fact,  with  what/ever  might  remain  of  his  personal 
estate  over  and  above  the  reasonable  parts  we  have  mentioned.^ 

All  this  curious  law  is  now  swept  away  ;  and  whatever  cus- 
toms may  have  formerly  restrained  the  testamentary  power  have 
at  all  events  been  abolished  in  England  by  the  statute  1  Vict.  c.  26 
(a.  d.  1837),  kuo\vn  as  the  Statute  of  Wills.^  Earlier  legislation 
led  to  this  change  of  law,  which  was,  indeed,  so  gradual  that 
Blackstone,  observing  that  in  his  own  time  one  might  by  will 
bequeath  the  whole  of  his  goods  and  chattels,  declared  himself 
unable  to  trace  out  when  first  the  alteration  began.^ 

§  15.  The  Same  Subject:    Devises  of  Land, 

Our  historical  -study  of  the  English  law  of  wills  is  not  complete 
without  a  further  consideration  of  the  ancient  "  devise,"  which  of 
course  related  in  the  earlier  days  of  our  common  law  to  real,  as 
strictly  distinguished  from  personal  property.  It  appears  that 
lands  in  England  were  devisable  by  will  prior  to  the  Norman 
Conquest.'*  Then  was  established  the  feudal  system,  and  the  feudal 
incumbrance,  imposed  upon  lands  held  in  tenure,  that  alienation 

9.  2     Bl.     Com.     492,     493,      495;  the  doctrine  of  reasonable  parts  was 

Schoul.  Exrs.  &  Admrs.  §§  1009,  1497  one  of  general  law  or  special  custom 

(Vol.   II).  in  its  origin,  furnished  matter  of  dis- 

1.  lb.  pute.      lb.,    commenting    upon    Coke, 

2.  See   this    statute    set    forth     in  2  Inst.  33. 

Appx.  4.  Wright     Tenures,     172;      2     BL. 

3.  2  Bl.  Com.  492,  493.      Whether       Com.  373;   4  Kent.  Com.  503. 

15 


§    16  THE   LAW    OF    WILLS.  [pART    I. 

could  not  take  place  without  the  consent  of  the  lord  ;  in  consequence 
of  which  the  power  of  devising  was  restrained,  so  as  not  to  curtail 
his  rights  and  privileges.  This  incumbrance,  against  which 
struggled  family  affection  and  the  desire  of  independent  dominion, 
yielded  sooner  where  lifetime  alienations  were  concerned  than  in 
dispositions  to  take  effect  after  death.  But  the  cunning  of  a 
feoffment  to  uses  introduced  a  means  of  evasion  whereby  one  could 
effectively  devise  his  land  until  the  Statute  of  Uses,  27  Hen.  VIII., 
destroyed  the  privilege.  Scarcely  five  years  later,  however,  an- 
other statute  of  the  same  reign  (33  Hen.  VIII.),  long  styled  the 
Statute  of  Wills  (as  amended  by  34  Hen.  VIII.),  gave  a  broad 
sanction  to  the  practice  of  devising  lands  directly  ;  until  by  a 
statute  of  Charles  II.  the  last  traces  of  feudal  tenure  were  abol- 
ished, and  the  disposition  of  real  property  by  will  was  rendered 
absolute.^  Once  more,  then,  we  reach  the  statute  of  1  Vict.  c.  26, 
by  which  all  restrictions  are  now  removed  from  the  disposition  of 
property  in  England,  whether  real  or  personal.® 

§  16.  Origin  of  Wills  in  the  United  States. 

Each  of  the  United  States  has  its  own  Statute  of  Wills,  with 
variations  to  be  noticed  in  detail  hereafter.  But  as  neither  feudal 
tenure  nor  the  doctrine  of  "  reasonable  parts  "  ever  had  a  clear 
footing  in  this  country,  the  American  rule  is,  and  has  been,  that 
one  of  suitable  capacity  may  dispose  of  his  real  and  personal 
property,  by  a  will  duly  executed  with  the  prescribed  formalities. 
"Not  it  is  usual  to  require  different  formalities  for  different  kinds 
of  property,  but  to  apply  one  rule  to  all  of  a  testator^s  property, 

5.  4  Kent  Com.  504,  505;  2  Bl.  required,  all  real  estate  and  all  per- 
Com.    373,    374.  sonal   estate   which   he   shall  be   enti- 

6.  See  Stat.  1  Vict.  c.  26  (A.  D.  tied  to,  either  at  law  or  in  equity,  at 
1837),  set  forth  in  our  appendix.  the  time  of  his  deatli,  and  which,  it 
Section  III.  of  tliis  act  contain.'!  the  not  so  devised,  bequeathed,  or  dis- 
{.'cneral  enaljlin;:^  clause,  beginning:  posed  of,  would  devolve  upon  the  heir 
"And  be  it  further  enacted,  Tliat  it  at  law,  or  customary  heir  of  him,  or 
sliall    be    hvwful    for   every   person   to  if  he  became   entitled  by   descent,  of 

•devise,  bifpiciitli,  or  dispose  of,  by  his       his  ancestor,  or  upon  his  executor  or 
uiii    cxi'culeil    in    manner    iicreinafter       administrator,"    etc. 

16 


PART    I.]  INTRODUCTION".  §    17 

real,  personal  or  mixed,  so  that  all  may  be  comprehended  in  the 
same  testamentary  instrument.'^  The  English  Statute  of  Frauds 
and  Perjuries,  28  Car,  II.  e  3,  which  directs  that  all  devises  shall 
be  in  writing,  signed  by  the  testator,  and  subscribed  in  his  presence 
by  a  stated  number  of  credible  witnesses,  is  at  the  foundation  of  our 
American  legislation  on  this  subject. 

§  16a.  Latest  American  Decisions. 

In  some  of  our  latest  decisions  the  principle  is  broadly  an- 
nounced that  there  is  no  natural  right  to  devise  or  bequeath  one's 
property  ;  but  that  the  right  in  this  country  to  make  ^  will  rests 
solely  upon  local  legislation,  conformable  to  the  local  constitution.* 
Yet  it  should  be  conceded,  that,  in  both  England  and  the  United 
States  the  absolute  ownership  of  property  gives  to  the  owner 
the  right  of  its  optional  disposal,  subject  only  to  the  recognized 
limitations  of  law.®  And,  strengthened  by  various  State  constitu- 
tional provisions  of  local  force,  the  individual  right  to  make  a 
will  is  usually  held  more  sacred  than  that  of  making  a  contract  ; 
since  the  one  is  beyond  all  judicial  power  to  disturb  on  equitabla 
grounds,  while  the  other  is  not.  ®^ 

§  17.  Prevalent  Rule  of  Succession;  the  Will  of  the  State  and 
the  Will  of  the  Individual. 

Kow  to  consider  the  rule  of  succession  ^  as  it  stands  at  the 
present  day  in  England  and  the  United  States.     Upon  the  prop- 

7.  Our  statute  regulations  on  the  with  citations,  in  the  North  Carolina 
subject  of  devise  are,  as  to  the  old  case,  whose  purport  is  to  uphold  all 
thirteen  States  especially,  substan-  taxation  of  inheritances  by  the  State, 
tially  alike  and  derived  from  the  But  cf.  Ball's  Estate,  141  N.  W.  8, 
English  statutes  of  32  Hen.  VII,  and  153  Wis.  27. 

29  Car.  IL,  4  Kent  Com.  505.  9.  See  Hayes  v.  Hayes,  145  S.  W. 

8.  See  May    v.    Thomas,   78   S.   E.       1155,  242  Mo.  155. 

85,  94  S.  C.  158    (legislature  may  re-  9a.  Cowie    v.    Strohmeyer,    136   N. 

strain);    Bergdorf's    Will,    98   N.   E.  W.  956,   150  Wis.  401. 

714.  206  N.  Y.   309;   Garland's  Will,  1.  The  word  "succession"   as   used 

76  S.  E.  486,  160  N.  C.  555.     See  the  in  the  present  connection    is    one    of 

opinion   of   Clark,   C.   J.,    at    length,  civil  rather  than  common  law  juris- 

2  17 


§  17  THE  LAW  OF  WILLS.  [PAKT  I. 

erty,  real  and  personal,  of  every  one  who  dies,  it  may  be  said  that 
one  or  another  of  two  schemes  of  legal  disposition  operates. 
(1)  There  is  the  will  of  the  State  ;  or,  as  the  familiar  phrase  goes, 
the  will  which  the  law  draws  up.  (2)  There  is  the  will  which 
the  individual  has  made  for  himself.  In  the  former  consists  the 
expression  of  the  public,  of  legislation,  presently  what  the  State 
deems  the  fitter  scheme  for  settling  the  great  majority  of  estates  ; 
in  the  latter,  that  which  the  owner  has  chosen  to  suit  his  special 
circumstances,  and  which  like  any  contract  admits  of  the  widest 
variety  of  forms.  It  sometimes  happens  that  the  individual  scheme 
as  set  forth  coincides  with  that  of  the  State  ;  possibly,  too,  one's 
own  will  may  have  comprehended  but  part  of  his  property,  leaving 
the  will  of  the  State  to  impress  the  residue  ;  but  more  commonly 
the  individual  scheme  seeks  to  work  out  a  total  disposition  of  its 
own.  differing  from  that  of  the  State.  One  who  leaves  no  will 
of  his  own  may,  perhaps,  be  considered  to  have  accepted 
that  of  the  State ;  the  latter  operating,  it  is  said,  "  ac- 
cording to  the  will  of  the  deceased,  not  expressed,  indeed, 
but  presumed  by  the  law."  ^  But  no  such  presumption  is  essen- 
tial ;  for  though  inadvertence,  sudden  death,  non-compliance  with 
legal  forms,  or  other  cause,  should  account  for  its  absence,  the 
individual  will  is  not  so  greatly  respected  by  the  public  that  the 
general  scheme,  the  will  which  the  law  draws  up  should  not  bo 
allowed  with  the  utmost  confidence  to  operate  exclusively  upon 
the  decedent's  estate  in  such  a  case. 

The  above  expression  is,  of  course,  to  be  understood  figurative- 
ly; for  in  the  literal  sense  of  our  law,  the  operation  of  the  will  of 

prudence.      But  it  is  very  cmvenient  be   found    in    English   books   on   com- 

for   denoting    the    general  devolution  parative  jurisprudence;      also   in  the 

of  title  in  property  by  death,  and  no  codes  of  Louisiana  and  other  Ameri- 

term  of  the  common  law  can  well  sup-  can      States,      whose      first      settlers 

ply  its  plafc.     By  succession  we  mean  brought  from  continental  Europe  the 

tlie  transmission  of  the  riglits  and  ob-  institutions    of    the    civil   law.       See 

ligations  of  a  deceased  person  to  those  Pxmv.  Diet.  "Succession." 

surviving    him,    whether  liy  a   testa-  2.  Puff.   Law  of  Nations,  lib.   4,   c. 

ment  or  without  one.      The  term  will  11;  2  Bl.  Com.  490. 

18 


PAET    I.]  INTRODUCTION.  §    19 

the  State  furnishes  the  case  of  intestacy,  but  that  of  the  individ- 
ual's own  will  the  condition  of  dying  testate. 

§  18.  The  Same  Subject:  Where  the  Will  of  the  State  is  Para- 
mount. 

Where,  then,  does  the  will  of  the  State  continue  paramount  to 
that  of  the  individual  ?  Or,  in  other  words,  what  constraints  does 
public  policy  still  place  upon  one's  power  of  testamentary  disposi- 
tion ?  confident  that  for  the  average  of  estates  its  own  scheme  is 
the  better,  still  in  no  case  permitting  that  the  succession  of  local 
jurisdiction  shall  fall  outside  of  both  schemes. 

(1)  Wherever  the  individual,  because  of  unsound  mind,  in- 
discretion, or  some  special  subjection  in  his  surroundings  to  fraud 
and  undue  influence,  must  be  deemed  incapable  of  making  the 
will.  (2)  Wherever  the  individual  will  in  question  is  not  executed 
with  all  the  fonnalities  which  public  policy  has  seen  fit  to  prescribe 
for  the  prevention  of  fraud  and  uncertainty.  (3)  Wherever  the 
individual,  though  he  made  a  will,  is  considered  to  have  revoked 
it,  directly  or  by  a  vital  change  of  circumstances.  (4)  Where, 
under  the  circumstances,  there  has  been  some  inconsistent  mutual 
arrangement  of  property  between  parties,  giving  rise  to  what  is 
known  as  their  joint  or  mutual  wills,  or  where  perhaps  the  will 
turned  upon  some  contingency.  All  these  matters  will  receive 
extended  treatment  in  the  course  of  the  present  treatise,  and  it 
may  truly  be  said  in  some  of  the  above  instances  that  the  individual 
who  died  left  no  will  of  his  own  behind  him.^ 

§  19.  The  Same  Subject:    Husband  and  Wife. 

In  other  respects  the  decedent  may  have  left  a  valid  will  of  his 
own,  duly  executed,  never  revoked,  and  not  inconsistent  with  any 
testamentary  arrangement  on  his  part  or  contingency  of  any  kind. 
And  yet  public  policy  ohstructs  certain  provisions  of  that  will  and 
sets  them  aside  because  it  is  thought  unjust  that  they  should 
operate.      (5)   In  many  of  the  American  States  a  widow  is  pro- 

3.  See  these  several  subjects  consid- 
ered in  detail,  Parts  II,  etc.,  post. 

G  19 


§  20  THE  LAW  OF  WILLS.  [pART  I. 

tected  bj  statute  against  the  arbitrary  disposition  of  her  husband ; 
for  she  may  waive  the  provisions  of  the  will  made  on  her  behalf 
and  take  her  dower  and  a  stated  share  of  his  personal  property 
instead  ;  *  or,  as  the  codes  of  some  States  provide,  the  widow  is 
entitled  to  her  share  of  her  husband's  real  and  personal  estate 
without  a  waiver  at  all.^  (6)  ISTow  that  a  married  woman  is  al- 
lowed by  many  recent  acts  to  make  a  testamentary  disposition 
without  her  husband's  concurrence,  a  similar  restraint  is  placed 
by  the  legislature  of  some  States  upon  her  own  arbitrary  disposi- 
tion against  the  husband;  which  fairly  enough  may  end  in  allow- 
ing him  a  corresponding  waiver  of  provisions  made  on  his  behalf 
under  his  wife's  will.^ 

§  20.  The  Same  Subject:    Children  unprovided  for. 

(T)  Children  are  not  allowed  any  such  privilege  of  waiver  ; 
yet  public  policy  does  not  permit  them  to  be  cut  off  from  their 
inheritance  by  any  indirection  of  the  testator.  A  child  not  ex- 
pressly provided  for  under  the  parental  will  shall  take  his  share 
as  in  the  case  of  intestacy,  unless  it  is  shown  that  the  testator  had 
otherwise  provided  or  that  such  omission  was  intentional.^  Pos- 
thumous offspring  come  within  the  same  rule  of  protection  ;  for, 
though  not  named  in  the  parental  will,  they  take  the  share  which 
the  State  testamentary  scheme  prescribes.^     Legislation  favorable 

4.  Mass.  Pub.   Stats.    (1882).   750;  revoked,  like  a  woman's,  by  the  mar- 

Sch.  Hu-5.  &  Wife,  §  429;  Heineman's  riage.        Stimson's    Am.    Stat.    Law, 

Appeal,  92  Penn.  St.  95;  Comstock  v.  §  2840;  post,  §§  424,  426;  Sch.  Exrs. 

Adams,    23    Kan.    513,    33    Am.    Rep.  §   1457a    (Vol.  II). 

191.      A  husband  cannot    by    a    will  5.  See    Stimson's    Am.    Stat.    Law, 

made    before    marriage    deprive    his  §  2841. 

widow  of  her  statutory  share  in  his  6.  Sch.  IIus.  &  Wife.  §  464;  Mass. 

personal  estate.     Ward  v.  Wolf,  9  N.  Pub.    Stats.     (1883),    819;    Hayes    v. 

W.  348,  56  Iowa,  475 ;   Little  Re,  61  Seavey,  46  A.  189,  69  N.  H.  308 ;  Mor- 

P.   899,   22   Utah,   204.    See,   further,  row's   Estate,    54   A.    342,    204   Penn. 

(;a8ter  v.  Gaster,  137  N.  W.  900,  90  484;  Kelley  v.  Snow,  70  N.  E.  89,  185 

Xeb.  529;   Williams  v.  Campbell,  118  Mass.  288;   Sch.  Exrs.  §  1457b    (VoL 

P,  1074,  85  Kan.  631.     Aside  from  the  II) . 

widow's  privilege  of  waiver,  there  arc  7.  Mass.  Pub.  Stats.   (1882)    750. 

many  of  the  United   States  where    a  8.  lb. 
man's   will,  made  before  marriage,  is 

20 


PART    I.] 


INTRODUCTION. 


21 


in  these  respects  to  omitted  children  or  issue,  whether  bom  before 
or  born  after  the  will,  may  be  found  in  nearly  all  of  the  American 
States  ;  yet  the  parental  right  to  disinherit  exists  and  may  be 
sufficiently  shown  on  the  face  of  the  will.^ 

§  21.  The  Same  Subject:    Gifts  Void  as  creating  Perpetuities, 
for  Superstitious  Uses,  etc. 

(8)   Gifts  under  the  individual's  will  which  fetter  unreasonably 


9.  See  2  Jarm.  Wills,  5th  Am.  edi- 
tion, Bigelow's  notes;  Stimson's  Am. 
Stat.  Law,  §§  2842-2844,  where  shades 
of  statutory  distinction  are  noted. 
And  posthumous  children  may  have 
riglits  under  a  will  independently  of 
statutes  especially  mentioning  them. 
As  where  the  testator  devises  all  his 
property  to  tlie  surviving  spouse  to 
the  exclusion  of  their  common  off- 
spring, as  is  not  infrequent  in  these 
days,  nor  without  a  fair  ultimate  in- 
tent towards  such  offspring.  Pearson 
v.  Carlton,  18  S.  C.  47;  Clarke  v. 
Blake,  2  Ves.  673. 

The  language  of  the  Massachusetts 
statute  permits  of  parol  proof,  out- 
side the  will  itself,  that  the  testator 
actually  intended  to  omit  the  child  in 
question.  Bancroft  v.  Ives,  3  Gray, 
367;  6  Met.  400.  And  see  Peters  v. 
Siders,  126  Mass.  135,  30  Am.  Rep. 
671.  In  Coulam  v.  DouU,  133  U.  S. 
216,  this  rule  is  followed,  against  that 
of  California.  An  illegitimate  child 
unintentionally  omitted  from  its 
mother's  will,  is  not  entitled  to  the 
protection  of  the  statute.  Kent  v. 
Barker,  2  Gray,  535.  So,  too,  as  to 
an  illegitimate  child,  legitimated  by 
a  subsequent  marriage,  see  McCul- 
loch's  Appeal,  113  Penn.  247,  6  A. 
253.  Nor  is  an  estate  in  which  one 
has    merely  a  power  of  appointment 


within  the  statute.  Sewall  v.  Wel- 
mer,  132  Mass.  131.  Under  the  Ar- 
kansas statute,  which  inhibits  the  ex- 
clusion of  a  child  by  will  unless  the 
child  is  mentioned  by  name,  a  general 
mention  of  children  as  a  class,  with- 
out stating  the  number  of  them,  is 
not  a  mention  in  full  compliance  with 
the  statute.  Arnold  v.  Arnold,  62 
Ga.  627.  See,  further,  Cunniff  v.  Cun- 
niff,  99  N.  E.  654,  255  111.  407. 

Posthumous  children  at  their  birth 
take  vested  interests  in  their  deceased 
parents'  estate,  subject  to  the  contin- 
gencies of  administration.  Knotts  v. 
Stearns,  91  U.  S.  638;  23  L.  Ed.  252; 
Catholic  Assoc,  v.  Firnane,  14  N.  W. 
707,  50  Mich.  82.  Cf.  Pearson  v.  Carl- 
ton, 18  S.  C.  47. 

But  unintentional  omission  is  not 
to  be  set  up  to  defeat  the  regular 
probate  of  the  will.  Doane  v.  Lake, 
32  Me.  268,  52  Am.  Dec.  654.  Nor 
does  a  mere  omission  infer  testamen- 
tary incapacity.  Kaufman  v.  Caugh- 
man,  49  S.  C.  159,  61  Am.  St.  Rep. 
808.  See,  further.  Riddle's  Estate,  14 
Phil.  327;  Smith  v.  Robertson,  89  N. 
Y.  555;  Wilson  v.  Fritts,  32  N.  J. 
Eq.  59;  5  Dem.  (N.  Y.)  374;  Sewall 
V.  Welmer,  132  Mass.  131. 

As  to  implications  of  intention  to 
disinherit  one's  nearest  relative,  see 
Dunlap's  Appeal,  16  Penn.  St.  500. 


21 


21 


THE    LAW    OF    WILLS. 


[part  I. 


long  the  free  circulation  of  property  are  now  pronounced  void  ; 
the  general  rule  being  that  any  limitation  (unless  it  be  for  chari- 
table uses)  which  locks  up  the  fund  for  a  longer  period  than  a 
life  or  lives  in  being,  and  twenty-one  years  beyond  (allowing,  in 
case  of  a  posthumous  child,  a  few  months  more  for  the  term  of 
gestation),  is  void.  And  according  to  modern  construction,  it  is 
not  sufficient  that  an  estate  may  vest  within  this  period,  to  avoid 
the  objection  of  perpetuity,  but  the  rule  is  that  it  must  so  vest.^ 
This  rule  against  perpetuities  applies  to  capital  and  income  also. 
Income,  by  the  old  rule  of  the  law,  still  prevalent  in  Massachu- 
setts and  some  other  States,  may  yet  be  prospectively  accumulated 
for  this  whole  period  within  perpetuities  under  the  individual's 


1.  1  Seh.  Pers.  Prop.  2d  Ed.  §  146; 
Sclioul.  Exrs.  §  1465  (Vol.  II),  2 
Redf.  Wills,  1st  Ed.  845,  846;  Ben- 
gough  V.  Eldridge,  7  Sim.  173 ;  Rand 
V.  Butler,  48  Conn.  293;  Odell  v. 
Odell,  10  Allen,  1;  Antliony  v.  An- 
thony, 55  Conn.  256. 

Statute  provisions  prevail  on  this 
subject  in  New  York,  Micliigan.  Geor- 
gia, Indiana,  Iowa,  Maryland,  Wis- 
consin and  various  other  States.  In 
New  York  and  some  other  States  the 
prescribed  period  of  limitation  is 
two  lives  in  being.  1  Jarm.  Wills,  5th 
Am.  Ed.  250,  253;  Stimson's  Am. 
Stat.  Law,  §§  1440-1442;  Gray's  Per- 
petuities,  passim. 

Thus,  a  gift  to  the  children  of  "  any 
son"  of  a  life  tenant  is  too  remote, 
and  it  cannot  be  shown  that  the  life 
tenant  was  past  child-bearing  at  the 
testator's  death.  39  Ch.  D.  155.  A 
bequest  in  perpetuity  ti)  keep  the  tes- 
tator's private  hurjing-ground  in  re- 
pair is  bad.  79  Ala.  419;  Kelly  v. 
Nichols,  17  R,  I.  306,  21  A.  906.  But 
local  statutes  come  frequently  in  aid 
of  bequests  to  provide  for  perpetual 
care  of  one's  burial  lot.      A  bequest 


in  perpetuity  to  keep  a  clock  in  re- 
pair is  void.  Kelly  v.  Nichols,  17  R. 
I.  306.  And  see  among  various  other 
cases,  Haynes  v.  Sherman,  117  N.  Y. 
433,  22  N.  E.  938;  Kennedy  v.  Ken- 
nedy (1914),  A.  C.  215;  Edward  v. 
Edward    (1909),  A.  C.  275. 

Where  a  gift  by  will  cannot  be  sepa- 
rated, the  whole  must  be  treated  as 
void  for  remoteness.  Harvey,  Re, 
39  Ch.  D.  289.  Otherwise  where  the 
gift  can  be  separated  and  part  up- 
held as  valid.  Vaughan,  Re,  33  Ch. 
D.  187.  A  gift  over  after  the  per- 
formance of  a  trust,  void  for  perpetui- 
ties, is  also  void.  56  N.  J.  Eq.  2  75; 
38  A.  424.  But  the  prohibition  has 
no  application  to  a  transfer  directed 
in  a  certain  event  fri)m  one  charity 
to  anotlu'r.  Tyler,  Re  (1891),  3  Ch. 
252. 

A  "  philanthropic  "  bequest  imports 
something  more  remote  than  a  chari- 
table one.  Macduff,  Re  (1896)),  2 
Ch.  451.  But  a  gift  "to  tlie  poor  and 
tlie  s-erviee  of  God  "  is  a  good  charita- 
ble gift.  Darling,  Re  (1896),  1  Ch. 
50. 


22 


PART    I.]  INTRODUCTION.  §    21a 

will.  But  the  unnatural  will  of  Mr.  Thellusson  in  the  last  cen- 
tury, which  excluded  from  the  benefits  of  the  estate  all  children 
and  descendants  procreated  during  his  lifetime  for  the  sake  of 
bestowing  a  princely  fortune  upon  some  strange  and  remote  scions 
of  the  stock  in  some  later  generation,  led  to  the  passage  of  the 
English  Stat.  39  and  40  Geo.  III.  c.  98,  by  which  accumulation 
of  real  or  personal  property  was  declared  restrained  thencefor- 
ward for  any  longer  tei-m  than  the  life  of  the  settler  or  testator, 
and  for  twenty-one  years  from  his  death  or  during  the  minority 
of  those  surviving  him  who  would  be  otherwise  entitled.  This,  it 
is  perceived,  makes  the  restraint  closer  upon  income  than  capital ; 
and,  though  just  in  policy,  American  legislatures  have  not  uni- 
formly adopted  the  change.^ 

§  21a.  The  Same  Subject :  Gifts  to  Superstitious  Uses,  etc. 

(9)  Gifts  under  a  will  to  "superstitious  uses"  are  likewise 
prohibited ;  though  English  legislation  of  this  sort  directed  against 
the  offices  of  the  Roman  Church  is  not  approved  to  the  fullest  ex- 
tent in  this  country  ;  nor  on  either  side  of  the  water  do  the  courts 
now  incline  to  assert  such  a  policy  so  boldly  or  so  harshly  as  a 
century  ago.^     On  the  other  hand,  legacies  and  bequests  to  chari- 

2.  1  Sch.  Pers.  Prop.  2d  Ed.  §  147;  English  cases  of  earlier  days  have 
Schoul.  Exrs.  §  1465 ;  2  Redf .  Wills,  gone  so  far  as  to  avoid  residuary  be- 
3d  Ed.  560,  563;  Odell  v.  Odell,  10  quests  made  for  educating  children  in 
Allen,  1;  Washington's  Estate,  75  the  Roman  Catholic  faith.  1  Jarm. 
Penn.  St.  102;  Stimson's  Am.  Stat.  205;  2  Redf.  495;  Gary  v.  Abbott, 
LiSiW,  §  1443.  In  New  York,  Pennsyl-  supra.  Or  for  the  benefit  of  dissenters, 
vania,  Louisiana  and  Minnesota  may  thcnigh  the  rule  is  now  otlierwise.  2 
be  found  statutes  reducing  the  com-  Redf.  496,  497.  All  such  bequests  are 
mon  law  rule  of  accumulation.  1  Perry  permitted  to  stand  by  the  law  of 
Trusts,  §  398;  1  Jarm.  Wills,  5th  Am.  American  States,  for  religious  tolera- 
Ed.  302,  note.  As  to  the  Michigan  tion  is  widely  practised,  and  we  have 
rule,  see  Toms  v.  Williams,  41  Mich.  no  established  church.  The  chief 
552,  2  N.  W.  814.  doubt  of  the  present   day  may  be  raised 

3.  2  Redf.  Wills,  495,  etc.;  Wms.  where  a  gift  is  made  for  masses, 
Exrs.  1055;  1  Co.  22;  Cary  v.  Abbott,  prayers  for  the  repose  of  the  testa- 
7  Ves.  490;  1  Jarm.  Wills,  205,  208;  tor's  soul,  etc.  It  would  appear  that 
20  R.  I.  446;  Ackerman  v.  Fichte'",  in  England  such  a  gift  is  still  treated 
101  N.  E.  493,  179  Ind.  392.  as  invalid.      West  v.  Shuttleworth,  2 

23 


§  22 


THE   LAW    OF    WILLS. 


[part  I. 


table  uses  liave  long  been  favored,  botb  in  England  and  the  United 

States." 


§  22.  The  Same  Subject:   Gifts  Subversive  of  Good  Morals. 

(10)  Wherever  a  will  makes  a  devise  or  bequest  to  further  and 
carry  into  effect  some  illegal  purpose  which  the  law  regards  as 
subversive  of  sound  policy  and  good  morals,  such  devise  or  bequest 
will  be  held  void,  and  the  executor  is  justified  in  not  paying  it.^ 
Thus,  conditions  of  a  testamentary  gift  tending  to  separation  or 
divorce  between  husband  and  wife  are  treated  as  void  ;  ^  though  it 
is  otherwise  with  conditions  which  merely  restrain  one's  surviving 
spouse  from  remarriage  ;  nor  are  other  conditions  restraining  mar- 
riage wholly  obnoxious.^  To  the  same  general  principle  of  good 
morals  and  sound  policy  may  be  referred  various  miscellaneous 
constraints  upon  testamentary  disposition  which  local  law  sees  fit 
to  impose.     Thus,  under  the  Louisiana  code  a  will  made  in  favor 


My.  &K.  684;  EUiott,  Re  (1891),  W. 
N.  9.  But  the  American  inclination 
is,  in  some  late  cases,  to  permit  such 
gifts  to  stand.  Powers'  Estate,  134 
Mass.  426;  McHugh  v.  McCole,  97 
Wis.  166,  72  N.  W.  631,  65  Am.  St. 
Rep.  106;  Johnston  v.  Hughes,  80  N. 
E.  373,  187  N.  Y.  446  (hospital); 
Martin  v.  Bowdern,  59  S.  W.  227,  158 
Mo.  379.  As  to  "  Christian  Science  " 
see  Glover  v.  Baker,  83  A.  916,  76  N. 
H.  393.  And  see  Smith,  Re  (1914), 
W.  N.  129  ("Franciscan  friars"). 
Some  other  States  hold  rather  to  the 
old  English  rule.  Uncertainty  in  the 
bequest  aids  sometimes  the  disposi- 
tion to  avoid  such  gifts.  Holland  v. 
Alcock,  108  N.  Y.  312.  And  see  Beek- 
man  v.  Bonsor,  23  N.  Y.  298;  Jack- 
eon  V.  Phillips,  14  Allen,  549. 

4.  2  Keilf.  Wills.  1st  Ed.  821;  Jones 
V.  Williams,  Amb.  651;  White  v. 
Whiff,    7    Ves.    423;      Schoul.    Exrs. 


§  1464  (Vol.  II);  Jackson  v. 
Phillips,  14  Allen,  556;  Williams  v. 
Williams,  4  Seld.  525;  Wms.  Exrs. 
1069,   1070,  and  Perkins's  notes. 

There  is  the  English  statute  of 
mortmain,  which  puts  restrictions 
upon  the  devises  of  land  for  charitable 
purposes.  See  act  9  Geo.  II,  c.  36 
(1736);  1  Jarm.  Wills,  219;  2  Redf. 
Wills,  508;  Wms.  Exrs.  1058  et  seq. 
American  legislation  is  not  uniform 
on  this  topic.  2  Kent  Com.  283.  That 
charitable  gifts  are  not  open  to  the 
objection  of  perpetuities,  see  1  Jarm. 
Wills,  5th  Am.  Ed.  251,  Bigelow's 
note. 

5.  2  Beav.  151;  1  Salk.  162;  2  My. 
&  K.  697;  Habeshon  v.  Vardon,  7  E. 
L.  &  Eq.  228 ;  Schoul.  Exrs.  §  1463. 

6.  Conrad  v.  Long,  33  Mich.  78. 

i7.  2  Redf.  Wills,  3d  Ed.  290-294;  2 
Jarm.  Wills,  5th  Am.  Ed.  44  ct  seq.; 
§  603,  post. 


24: 


PART    I.] 


INTKODUCTION. 


23- 


of  the  testator's  concubine  is  treated  as  null  and  void.**  And  as  to 
illegitimate  children,  our  law  has  had  a  varying  purpose  to  exclude 
them  from  the  benefits  of  a  will.^  Doubtless  the  local  conception 
of  public  policy  on  such  points  is  liable  in  different  jurisdictions 
and  at  different  epochs  to  great  variation,  and  decisions  must 
greatly  vary  in  consequence.  Some  codes  limit  the  proportion  of 
estate  that  one  may  leave  by  will  to  his  mistress  or  bastard  chil- 
dren.^ 


§  23.  The  Same  Subject:    Personal  Incapacity  to  take  under  a 
Will. 

(11)   Most  persons   are   in  modern  times   deemed  capable  of 
taking  benefits  under  a  will.    But  alien  enemies  ^  and  other  classes. 


8.  Gibson  v.  Dooley,  32  La.  Ann. 
959.  Cf.  Donnely,  Re,  26  N.  W.  23, 
68  Iowa,  126,  whei-e  a  woman  left  her 
property  to  the  man  who  lived  with 
her  as  her  husband,  but  who  had  a 
lawful  wife  living.  And  see  Sunder- 
land V.  Hood,  84  Mo.  293;  82  Ky.  93, 
56  Am.  Rep.  880.  A  will  made  in 
favor  of  the  testator's  mistress  is  not 
per  se  void  because  of  the  illicit  in- 
ducement. 159  Penn.  St.  630,  28  A. 
448;  Ruffino's  Estate,  116  Cal.  304, 
48  P.  127;  Arnault  v,  Arnault,  52  N. 
J.  Eq.  801,  805,  31  A.  606,  and  cases 
cited.  Not  even,  it  is  held,  though 
the  testator  ignores  his  wife  and 
leaves  all  to  the  mistress.  Arnault  v. 
Arnault,  supra  (carrying  the  doctrine 
to  an  extreme  limit).  Undue  influ- 
ence is  often  found  an  element  in  wills 
which  bequeath  property  thus.  Mc- 
Clure  V.  McClure,  86  Tenn.  174;  post 
§§  229,  236,  237.  See  also  Beatty  v. 
Richardson,  34  S.  E.  73,  56  S.  C.  173; 
74  S.  E.  892,  91  S.  C.  389. 

The  question  of  what  contravenes 
sound  policy  and  good  morals    is    for 


the  court,  not  a  jury,  to  decide.  Smith 
V.  Du  Bose,  78  Ga.  413,  6  Am.  St.  Rep. 
260. 

9.  S«e  Schoul.  Dom.  Rel.  §  281. 
Illegitimate  children  may  now  take 
equally  under  a  gift  to  "  children." 
lb. ;  37  Ch.  D.  695 ;  Smith  v.  Du  Bose, 
78  Ga.  413;  L.  R.  9  Ch.  147.  But 
the  English  rule  still  excludes  a  fu- 
ture illegitimate  child  described  solely 
by  reference  to  its  paternity.  Bolton, 
Re,  31  Ch.  D.  542,  commmenting  on 
former  cases.  As  to  future  illegiti- 
mates, however,  who  exist  at  the  tes- 
tator's death,  see  Hastie's  Trusts,  35 
Ch.  D.  728;  §§  481,  534.  And  see  105 
N.  W.  1064,  126  Wis.  660;  Frogley, 
Re    (1905).  Prob.  137. 

1.  37  S.  C.  537,  IG  S.  E.  614. 

2.  As  to  alien  friends  the  incapacity 
formerly  existing  in  England  appears 
to  have  been  removed  by  legislation 
of  1870.  1  Jarm.  Wills,  67-69;  and 
see  next  c.  In  the  United  States,  the 
rule  is  that  an  alien  may  take  lands 
by  grant  or  devise;  though  he  cann  )t 
liold    it    at  common  law    against    the- 


25 


§  23 


THE    LAW    OF   WILLS. 


[part   1. 


of  persons  may  still  be  found  proliibited  by  the  local  statute,  on 
grounds  of  policy,  besides  those  whose  participation  in  these  bene- 
fits could  in  any  sense  of  the  word  be  called  immoral.  And  on  the 
ground  that  no  one  shall  profit  by  his  own  crime,  it  has  been  de- 
clared that  a  beneficiary  who  murders  the  testator  cannot  take 
under  his  will.^  Possibly  the  fraudulent  concealment  of  a  pre- 
existing marriage  might  defeat  a  bequest  to  give  to  one  as  a  bona 
fide  spouse.* 

Precaution  against  frauds  has  furnished  a  ground  for  declaring 
all  legacies  and  devises  void  when  made  to  the  essential  subscrib- 
ing witness  of  a  will.^    By  this  means,  harsh  though  it  may  seem. 

State.     He  may  also  take  a  legacy  for      against  the  majority  of  the  court.     4 


his  own  benefit.  1  Jarm.  68,  Bigelow's 
note;  Craig  v.  Leslie,  3  Wheat.  563; 
Wilbur  V.  Tobey,  16  Pick.  179 ;  Wads- 
worth  V,  Wadsworth,  2  Kern.  37  6;  1 
Kent  Com.  54,  70,  and  cases  cited. 
Treaties  made  by  the  United  States 
with  a  foreign  power  in  such  matters 
constitute  the  supreme  law  of  the 
land.  Opel  v.  Shoup,  100  Iowa,  407; 
1G8  111.  632;    102  Iowa,  169. 

3.  Kiggs  V.  Palmer,  115  N.  Y.  506, 
12  Am.  St.  Rep.  811,  5  L.  R.  A.  340, 
22  N.  E.  188  ( 2  judges  diss. ) .  Contra, 
Owen  V.  Owen,  100  N.  C.  240,  16  S. 
E.  794.  The  English  rule  excludes 
such  beneficiaries.  See  (1892)  12  B. 
147;  Hall,  Re  (1914),  p.  1  (man- 
slaughter) . 

4.  Donnely,  Re,  68  Iowa,  126. 

5.  1  Vict.  c.  26,  §  15 ;  Schoul.  Exrs. 
I  1 076  ( Vol.  II ) .  It  was  long  a  ques- 
tion in  the  English  courts  whether  a 
subscribing  witness  could  be  rendered 
coiniKiterit  by  liaving  his  interest  de- 
stroyed by  menas  of  a  release  or  pay- 
m<nt  before  his  examination;  and  in 
a  leading  case  Lord  Camden  con- 
tended for  this  view  of  a  "credible 
witness  "  nndor  the  Statute  of  Frauds 


Burn  Eccl.  Law,  27;  1  Jarm.  70.  The 
later  statute  of  25  Geo.  II.  c.  6,  solved 
the  difficulty  by  declaring  all  benefi- 
cial devises  and  legacies  to  the  attest- 
ing witnesses  void,  rather  than  sac- 
rifice the  entire  will.  1  Jarm.  71.  By 
the  act  1  Vict.  c.  26,  the  principle  is 
fully  extended  to  wills  of  personal 
and  real  estate,  and  the  English  policy 
well  established. 

Under  the  statute  of  25  Geo.  II., 
above  cited,  it  is  decided:  (1)  That 
the  devise  or  legacy  must  be  to  the 
witness  beneficially,  and  not  to  one  in 
trust,  in  order  to  be  thus  annulled; 
(2)  That  the  statute  only  applies 
where  the  witness  takes  a  direct  inter- 
est under  the  will  and  not  where  his 
interest  arises  consequentially;  (3) 
That,  as  between  a  will  and  codicils, 
the  interest  which  is  given  by  force 
of  the  witnessed  instrument,  not  that 
which  is  merely  confirmed  by  it,  is 
the  interest  which  the  subscription 
invalidates.  1  Jarm.  Wills,  71,  72; 
Cresswell  v.  Cresswell,  L.  R.  6  Eq. 
69;  Tempest  v.  Tempest,  2  Kay  &  J. 
635. 

For     the     American    doctrine,    the 


2G 


PAKT    I.] 


INTRODUCTION. 


§  24 


the  witness  becomes  competent,  because  disinterested.  The  policy 
of  the  law  extends  sometimes  to  other  beneficiaries  for  the  sake  of 
securino-  disinterested  witnesses.^ 


§  24.  The  Same  Subject:   Incapacity  of  Corporations. 

Fnder  the  statute  34  Hen.  VIII.  c.  5,  bodies  politic  and  cor- 
porate were  expressly  prohibited  from  taking  by  devise ;  and  this 
disability  operated  equally  whether  the  corporation  was  aggregate 
or  sole,  and  even  though  the  devise  was  in  trust  instead  of  bene- 
ficial.'^ But  the  incapacity  to  take  land  being  a  consequence  of 
that  statute  it  ceased  to  operate  when  the  statute  1  Vict.  c.  26,  took 
effect.  The  latter  statute  contains  no  such  prohibition,  but  leaves 
the  corporate  capacity  to  take  under  a  will  dependent  upon  general 
principles  ;  and  the  general  principle  here  operative  is  that  the 
corporation  may  indeed  take  but  cannot  hold  and  exercise  full 
dominion  without  a  license.^    That  general  principle  excepts  from 


wills  acts  of  the  several  States,  not 
wholly  uniform  in  their  provisions, 
should  be  consulted.  The  provision 
most  prevalent  is  to  the  effect  that 
witnesses  are  incapable  of  taking 
any  beneficial  interest  under  the  will, 
unless  there  is  a  sufficient  statutory 
number  exclusive  of  the  witness  in 
question.  In  New  York  and  many 
other  States,  a  witness  who  would 
have  been  entitled  to  a  share  of  the 
estate  had  not  the  will  been  made, 
may  recover  to  that  extent.  And  in 
a  few  States  the  legatee,  if  dying  be- 
fore the  testator,  is  expressly  to  be 
considered  a  legal  witness  of  the  will. 
1  Jarm.  Wills,  70,  Bigelow's  note; 
Schoul.  Exrs.  §  1076  (Vol.  II).  An 
heir  at  law,  who  is  disinherited  by  a 
will,  is  a  competent  subscribing  wit- 
ness. Sparhawk  v.  Sparhawk,  10 
Allen,    155. 

In  some  States,  the  code  still  con- 
templates the  release  of   his   interest 


by  a  subscribing  witness  so  as  to  ren- 
der him  competent.     See  §§  350-357. 

6.  Thus  the  statute  of  25  Geo.  II. 
c.  6   (extended  as  above  shown,  by  act 

1  Vict.  36)  annuls  the  devise  or  be- 
quest to  the  wife  or  husband  of  an 
attesting  witness.  1  Jarm.  Wills,  73. 
As  to  non-competency  of  a  spouse 
apart  from  such  a  statute  provision, 
see  Sullivan  v.  Sullivan,  106  Mass. 
474,  S  Am.  Rep.  356,  and  citations. 
For  the  general  question  of  the  com- 
petency of  subscribing  witnesses,  such 
as  executor,  or  creditor,  see  Part  III, 
post,  c.  3.  As  to  a  spiritual  adviser 
during  one's  last  illness,  see  61  So. 
765;   132  La.  714    (donation). 

7.  1  Jarm.  Wills,  4th  Eng.  Ed.  65. 

8.  1  Jarm.  Wills,  65,  66;  Co.  Litt. 

2  b.  By  various  early  enactments, 
reaching  back  to  Magna  Charta,  cor- 
porations were  disabled  from  holding 
real  property  by  a  devise  though  they 
might  take  it,  the  main  objection,  as 


27 


§    24:  THE    LAW    OF   WILLS.  [pART    1. 

its  operation,  however,  such  corporations  as  are  already  licensed, 
or  authorized  by  legislation  in  their  charters,  to  hold  lands  by  de- 
vise ;  so  far  at  least  as  such  previous  authority  or  license  may 
happen  to  cover  the  case.^  A  devise  to  a  corporation  in  trust  is 
upheld,  provided  the  trust  itself  be  not  illegal  ;  and  even  when  the 
corporation,  before  1  Vict.  c.  ^6,  could  not  take  in  trust,  so  that 
the  devise  was  void  in  law,  the  estate  descended  to  the  heir  charged 
with  the  trust.^ 

The  exception  just  noticed  is  seen  to  relate  to  lands.  At  com- 
mon law  corporations  have  been  entitled  equally  with  individuals, 
as  it  would  appear,  to  take  personal  property  by  bequest  ;  and 
various  American  decisions  fortify  this  theory.^  But  limitations 
and  restrictions  under  the  act  of  incorporation  should  here  be 
regarded  ;  to  the  extent,  at  least,  of  procuring  an  enabling  act 
from  the  legislature  to  hold  the  property  where  the  original  charter 
pri\41eges  would  otherwise  be  transcended.^  In  Massachusetts  and 
many  other  States  no  disability  to  t^ke  by  either  devise  or  bequest 
is  imposed  by  the  statute  of  wills  upon  corporations.     But  the 

it  would  appear,  growing  out  of  the  Thompson  v.   Swoope,    24    Penn.    St. 

loss  of  escheats  and  feudal  profits  to  474.     As  to  bequest  or  devise   to    the 

the  lords    by    such  perpetual  tenure.  State  or  a  State  institution,  see  Beck's 

The  license  of  the  Crown  protects  the  Estate,  121  P.  1057;  44  Mont.  561. 
devise.     lb.  3.  Enabling  acts    of    this  character 

9.  1  Jarm.  Wills,  66.  are  frequently  met  in  the  special  leg- 

1.  Incorporated  Society  v.  Richards,  islation  of  American  States  at  each 
1  D.  &  War.  258.  At  common  law  session.  Generally  in  the  United 
municipal  corporations  authorized  to  States  a  devise  of  real  or  bequest  of 
hold  land  in  mortmain  might  take  personal  property  may  be  made  to  any 
land  by  devise.  Mcintosh  v.  City  of  person  or  corporation  capable  by  law 
Charleston,  23  S.  E.  943,  45  S.  C.  584.  of  holding  such  real  or  personal  prop- 
But  sometimes  the  local  statute  for-  erty.  Stimson's  Am.  Stat.  Law,  § 
bids  or  repairs  such  a  devise.  House  2610.  But  charter  limitations  as  to 
of  Mercy  v.  Davidson,  39  S.  W.  924,  tlie  amount  of  property  a  corporation 
90  Tex.  529v.  is  entitled  to  hold,  may  deprive  even 

2.  Phillips  Academy  v.  King,  12  an  educational  institution  from  takin.^ 
Mass.  546;  Burbank  v.  Whitney,  24  an  additional  legacy.  Sec  Cornell 
Pick.  151,  35  Am.  Dec.  312,  516;  Mc-  University  case  (1889),  136  U.  S.  152, 
Cartce  v.  Orphans'  Asylum,  9  Cow.  34  L.  Ed.  427,  sustaining  111  N.  Y. 
437;   Gibson  v.  McCall,   1  Rich.   174;  66,  2  L.  R.  A.  327. 

28 


PART 


I.] 


INTEODUCTION. 


24: 


American  laile  is  not  uniform.  Legislation  is  found  in  certain 
States,  whose  purpose  is  to  restrain  each  testator  from  neglecting 
the  natural  objects  of  his  bounty,  through  pious,  philanthropic  or 
less  worthy  motives.  And  under  the  New  York  code  it  is  expressly 
declared  that  no  devise  to  a  corporation  shall  be  valid  unless  the 
coi*poration  be  expressly  authorized  by  its  charter  or  by  statute  to 
take  by  devise.* 


4.  4  Kent  Com.  507;  1  Jarm.  65, 
Bigelow's  note;  Fox's  Will,  52  N.  Y. 
530;  White  v.  Howard,  46  N.  Y.  144. 
But  see  American  Bible  Society  v. 
Marshall,  15  Onio  St.  537,  which  an- 
nounces a  more  favorable  rule  as  to 
foreign  corporations.  A  New  York 
statute  makes  a  devise  to  a  corpora- 
tion void  if  given  by  a  will  executed 
within  two  months  of  the  testator's 
death.  4  Dem.  Ill;  134  N.  Y.  S. 
226.  See  Santa  Clara  Academy  v. 
Sullivan,  116  111.  375;  Inglehart  v. 
Inglehart,  204  U.  S.  478,  51  L.  Ed. 
575;  27  S.  C.  329;  123  Cal.  614,  44 
L.  R.  A.  364,  56  P.  461;  Budd's  Es- 
tate, 135  P.  1131,  166  Cal.  286,  134 
N.   W.  429. 

Whether  an  unincorporated  society 
may  take  property  under  a  will  is  dis- 
cussed in  some  cases.  "  To  take  and 
hold  legal  estate  directly,  to  maintain 
actions  as  an  aggregate  body,  and  in 
a  name  of  association,  incorporation 
is  necessary.  But  a  voluntary  asso- 
ciation, meeting  and  acting  under  a 
common  name,  for  a  common  object, 
especially  a  charitable  one,  duly  or- 
ganized by  choosing  officers,  keeping 
written  minutes  of  their  votes  and 
acts  in  the  nature  of  a  record,  and 
thus  being  capable  of  being  designated 
and  identified  by  proof,  is  a  body 
capable  of  being  the  beneficiaries  of 
such  a  trust    (i.  e.,  of  lands)   though 


not  incorporated."  Shaw,  C.  J.,  in 
King  V.  Parker,  9  Cush.  71.  And  see 
Tucker  v.  Seamen's  Aid  Society,  7 
Met.  188.  It  is  generally  admitted 
that  a  liberal  rule  should  apply,  es- 
pecially in  case  of  a  definite  charita- 
ble gift  made  to  a  definite  trustee, 
notwithstanding  it  would  be  void  by 
the  general  rules  because  the  persons 
to  be  benefited  by  it  are  unascer- 
tained. But  in  Pennsylvania  a  devise 
to  an  unincorporated  "  Infidel  Soci- 
ety "  has  been  treated  as  void  from 
considerations  of  public  policy  and 
because  the  legislature  was  unlikely 
to  incorporate  such  a  society.  Zeis- 
weiss  V.  James,  63  Penn.  St.  465,  5 
Am.  Rep.  558.  And  see  Fralick  v. 
Lyford,  79  N.  E.  1105,  187  N.  Y.  524 
(gift  to  "spiritualism).  And  under 
the  policy  of  the  New  York  code  an 
unincorporated  association  appears  to 
be  treated  with  little  favor  as  the 
beneficiary  of  a  devise.  Downing  v. 
Marshall,  23  N.  Y.  366.  Fraternal 
insurance  order  held  incapable  in 
Kennett  v.  Kidd,  125  P.  36,  87  Kans. 
652. 

Concerning  the  power  to  take  by 
devise  or  bequest,  (educational,  etc.), 
see  Speer  v.  Colbert,  26  S.  Ct.  201, 
200  U.  S.  130;  Royer's  Estate,  56  P. 
461,  123  Cal.  614;  Winchester's  Es- 
tate, 65  P.  475,  133  Cal.  471. 

As    to   what   a   city   or    municipal 


29 


§26  THE    LAW    OF   WILLS.  [pART    I. 

§  25.  The  Same  Subject:  Infancy,  Insanity,  Coverture,  etc.,  does 
not  incapacitate  from  taking. 
Although  infants  and  insane  persons  are  under  legal  disability 
to  act  for  themselves,  such  persons  are  not  incapacitated  from  be- 
coming devisees  or  legatees  under  a  will.  For  not  to  speak  of  the 
acts  of  a  guardian  done  on  behalf  of  one  not  sui  juris,  the  latter's 
acceptance  of  what  is  beneficial  to  him  may  be  readily  presumed.^ 
This  is  a  principle  which  both  the  common  and  civil  law  have 
applied  to  gifts  in  general,  so  long  as  the  gift  be  not  injurious  in 
itself  but  the  reverse.^  As  for  coverture,  it  may  seem  a  truism  to 
assert  that  chancery,  in  advance  of  our  revolutionary  legislation 
of  modern  times,  has  pennitted  a  married  woman  to  take  under  a 
will  to  her  sole  and  separate  use,  and  free  from  her  husband's 
control.^  And  inasmuch  as  death  ends  the  state  of  coverture,  there 
is  nothing  to  prevent  a  man  from  devising  or  bequeathing  to  his 
widow,  even  though  a  husband's  conveyance  to  his  wife  inter  vivas 
be  invalid  at  common  law.* 

§  26.  The  Same  Subject:  Maxims  of  Testamentary  Construc- 
tion. 
(12)  We  may  add,  that  while  the  judicial  disposition  constantly 
increases,  in  America  especially,  to  seek  out  and  give  reasonable 
effect  to  a  testator's  wishes,  through  the  dark  envelopment  of  am- 
biguous and  inaccurate  phraseology,  provisions  which  of  them- 
selves are  unkind,  destitute  of  natural  affection,  foolish,  unjust,  or 
hopelessly  vague  and  uncertain,  are  not  strained  into  place  out  of 

corjioration    may    take,    whether    by  ("in    trust");    Glover   v.    Baker,   S3 

common   law   or   statute,   see   Crane's  A.  916,  76  N.  H.  393. 

Will,  54  N.  E.  1089,  159  N.  Y.  557;  5.  Burdett  v.  Hopegood,  1  P.  Wms. 

Handley   v.   Palmer,   91    F.   948.     As  486;   1  Mer.  654;   1  Jarm.  Wills,  76. 

to  a  corporation  holding  property  to  6.  2   Schoul.   Pers.   Prop.   3d   Ed.   § 

the  whole  statute  limit  of  permission  90;    De   Levillain    v.   Evans,   39    Cal. 

when  a  will  took  effect,  see  House  of  120;   Gardner  v.  Merritt,  32  Md.  78, 

Mercy  v.  Davidson,  39  S.  W.  924,  90  3  Am.  Rep.  115. 

Tex.  529   (devi.se  void).  7.  Schoul.  Dom.  Rel.  §§  83,  103. 

For  gift  to  a  cliurch,  see  Chase  v.  8.  Litt.  §  168;  1  Jarm.  76;  Schoul. 

Dickey,  99  N.  E.  410,  212  Mass.  555  Dom.  Rel.  §§  191-193. 

30 


PART    I.]  INTRODUCTION.  §    27 

any  undue  solicitude  for  what  the  individual  intended.  Against 
such  gifts  the  law's  testamentary  scheme  may  well  be  suffered  to 
prevail,  and  every  doubt  may  thus  be  resolved  in  favor  of  a  just 
and  sensible  disposition,  and  not  the  reverse.  If  a  class  of  takers 
is  not  clearly  identified,  kindred  by  blood  are  properly  favored 
over  kindred  by  affinity  ;  bequests  to  executors  or  trustees  are 
readily  construed  as  given  in  trust  unless  the  contrary  is  apparent  ; 
courts  are  less  disposed  to  uphold  an  expectant  interest  in  chattels, 
perishable  ones  especially,  than  in  real  estate.  And  while  earlier 
and  later  cases  antagonize  to  some  extent  in  practical  results,  it  is 
a  fundamental  maxim  that  bequests  or  trusts  which  are  hopelessly 
vague  and  uncertain  must  altogether  fail ;  ^  and  so,  too,  is  it  with 
impossible  and  repugnant  conditions.  ^ 

One  cannot  devise  or  bequeath  property  to  the  estate  of  a  per- 
son ;  because  such  a  devisee  or  legatee  is  not  a  person  nor  an  entity.^ 

§  27.  The  Same  Subject:   General  Conclusion. 

All  of  the  points  thus  enumerated  should  be  taken  well  into  ac- 
count whenever  the  individual  proposes  to  substitute  a  testa- 
mentary scheme  of  his  own  for  that  of  the  State ;  or,  as  in  general 
speech,  to  have  his  estate  settled  after  his  death  as  testate  instead 
of  intestate.  Under  these  various  divisions  are  fairly  comprised 
those  restraints  which  modern  law  and  policy  have  placed  upon 
testamentary  disposition.  The  disregard  of  such  restraints  should 
operate  a  total  or  partial  intestacy,  according  to  circumstances  ; 
though  it  is  proper  to  observe  that  the  courts,  out  of  favor  to  the 
presumed  intention  of  the  testator,  have  leaned  against  any  such 
construction  of  a  will  as  results  in  partial  intestacy.  Hence,  as  to 
personal  property,  whatever  thus  turns  out  not  to  have  been  effect- 
ually disposed  of,  as,  for  instance,  a  void  or  lapsed  legacy,  falls 
most  readily  into  the  residuary  fund,     ^ot  that  the  State  scheme 

9.  1  Sell.  Pers.  Prop.  §  148;  2  Kent  356;   2  lb.  438.     And  see  more  fully 

Com.    354;     per    Redfield,    C.    J.,    in  Part  VI.  post. 

White  V.  White,  21  Vt.  250;   2  Redf.  1.  See  2  Jarm.  5th  Am.  Ed.  13. 

Wills,   3d   Ed.   29,   383-429;    1   Jarm.  2.  Glass's  Estate,   130  P.   868,   164 


Cal.  765. 


31 


§    28  THE    LAW    OF   WILLS.  [pART    I. 

of  testamentary  disposition  shall  not  take  a  partial  effect  where 
a  fair  construction  of  the  will  permits  it,  nor  that  a  partial  dispo- 
sition of  property  may  not  be  made  by  any  individual  who  sees 
fit  to  do  so  ;  but  because  a  presumption  arises  that  the  testator 
intended  that  his  residuary  legatee  should  have  everything  not 
particularly  bestowed  upon  others,  and  that,  having  taken  the 
trouble  to  make  a  will  at  all,  his  intention  was  to  embrace  all  his 
property  under  it.^ 

§  28.  What  may  be  given  by  a  Will. 

By  the  rule  already  noticed,  which  obtains  in  England  and  the 
United  States  in  the  present  century,  all  the  property  which  one 
owns  may  be  disposed  of  by  his  last  will  and  testament  ;  and  this 
embraces  equally  all  the  real  and  all  the  personal  property  to  which 
he  shall  prove  entitled,  legally  or  beneficially,  at  the  time  of  his 
death.  Corporeal  and  incorporeal  rights,  and  future  and  con- 
tingent interests  which  deserve  the  name  of  property  at  all,  are 
herein  included.*  And  the  disposition  regards  presumably  such 
property,  real  or  personal,  as  the  testator  may  be  entitled  to  when 
the  will  comes  into  force,  rather  than  what  he  has  at  the  time  of 
its  execution  ;  for  it  is  according  to  the  state  of  his  affairs  as  they 
exist  at  his  death  that  any  deceased  person's  estate  must  be 
settled.^ 

3.  See  2  Redf.  Wills,  3d  Ed.  115,  word,  the  basis  is  that  of  property 
116;  Leake  v.  Robinson,  2  Mer.  363;  transmissible  by  way  of  inheritance 
18  Beav.  417;  Amb.  577,  per  Lord  or  assignment.  1  Sch.  Pers.  Prop. 
Eldon.  3d  Ed.  §  71,  etc.;   1  Redf.  Wills,  38S. 

4.  See  language  of  Stat.  1  Vict.  c.  Technical  words  like  "  seised "  in 
26,  §  3;  Schoul.  Exrs.  §§  1001,  1002  statutes  conferring  the  right  to  de- 
(Vol.   II).    All   interests   in   real   and  vise  should  receive  a  liberal  interpre- 

personal  property  are  included  under  tation.  Bailey  v.  Hoppin,  12  R.  I. 
the  terms  of  the  English  act  which,  at  560;  Ingilby  v.  Amcotts,  21  Beav. 
the  decease  of  the  testator,  would,  if  585.  See  Jones  v.  Huntley,  72  S.  E. 
not  so  disposed  of,  devolve  to  his  gen-  353,  156  N.  C.  410. 
oral  real  or  personal  representatives,  5.  Schoul.  Exrs.  §§  1001,  1002  (Vol. 
f)r,  if  he  become  entitled  by  descent,  II);  Redf.  Wills,  4th  Ed.  378.  Lan- 
oii  tlie  lieir  or  customary  heir  of  tlie  guage  in  a  will  which  expressly  re- 
ancestor.      1   Jarm.   Wills,   46.     In   a  fers   to  the  present  time  must,   how- 

32 


PART    I.]  INTRODUCTION.  §    28 

Hence,  a  testator  in  whom  is  the  legal  title  to  lands  which  he 
had  sold  by  a  written  contract,  can  transfer  by  his  will  both  the 
title  and  the  notes  given  for  the  purchase-money.^  Any  equitable 
interest  founded  in  articles  of  agreement  for  a  purchase  will  thus 
pass.^  But  in  case  of  an  uncompleted  contract  of  this  kind  the 
state  of  right  or  liability  of  the  party  at  his  death  governs  the 
question  between  those  who  may  claim  under  him.^  All  con- 
tingent estates  of  inheritance,  including  springing  and  executory 
uses  and  possibilities  coupled  with  an  interest,  and  contingent 
remainders  are  devisable,  if  the  person  to  take  be  ascertained.' 
Vested  estates  are  doubtless  devisable,  though  liable  to  be  defeated 
by  the  happening  of  some  subsequent  event  or  the  non-performance 
of  some  condition.^  But  there  can  be  no  devise,  more  than  a 
transmission  inter  vivos,  of  a  possibility  where  the  person  to  take 
is  not  ascertainable  ;  ^  nor  of  any  mere  naked  and  remote  expect- 
ancy coupled  with  no  interest.^  As  for  estates  of  which  the  grantor 
has  been  wrongfully  disseised,  they  are  not  in  technical  strictness 
assignable  ;  but  as  claims  of  this  character  may  be  pursued  in 
equity,  so  by  good  reason  ought  they  to  be  capable  of  testamentary 
transfer.    A  right  of  entry  after  disseisin,  a  right  to  set  some  trans- 

ever,  receive  that  construction.     And  1.  Redf.    Wills,    390;     1    P.    Wms. 

specific  gifts  of  stock  or  other  prop-  563;     Winslow    v.    Goodwin,    7    Mot. 

erty  have  naturally   a   present  refer-  363;  Ingram  v.  Girard,  1  Houst.  276. 

ence.      1    Redf.    Wills,    380,    381;    14  The   rule   is   long    since   settled   that 

Sim.  248.  executory    devises    are    transmissible 

6.  Atwood  v.  Weems,  99  U.  S.  183,  and  devisable;  not  mere  possibilities, 
24  L.  Ed.  471.  but   in   the   nature  of   contingent   re- 

7.  Marston  v.  Fox,  8  Ad.  &  E.  14;  mainders.  lb.;  Jenkins  v.  Bonsai, 
Malin  v.   Malin,   1   Wend.   625.     But  82  A.  229,  116  Md.  629. 

see  McKinnon  v.  Thompson,  3  Johns.  2.  4  Kent  Com.  262. 

Ch.   307.  3.   1  Redf.  Wills,  4th  Ed.  389.  The 

8.  1  Jarm.  Wills,  54;  Lord  Eldon  mere  riglit  to  recover  land  for  breach 
in  Broome  v.  Monck.  10  Ves.  59  7;  of  an  express  condition  in  the  deed 
Lysaght  v.  Edwards,  2  Ch.  D.  516.  is    not    devisable.      See    Upington    v. 

9.  1  Jarm.  Wills,  5th  Am.  Ed.  46,  Corrigan,  151  N.  Y.  143,  37  L.  R.  A. 
Bigelow's  note;  1  Ves.  Sen.  391,  411:  794,  45  N.  E.  359;  Methodist  Church 
Pond  V.  Bergh,  10  Paige,  41;  4  Kent  v.  Young,  40  S.  E.  691,  130  N.  C.  8. 
Com.  261;  Loring  v.  Arnold.  15  R.  I. 

428;    68  S.  E.  659,  86  S.  C.  445. 

3  33 


§29  THE   LAW    OF   WILLS.  [pAET    I. 

action  aside,  should  therefore  pass  under  a  will  ;  and  local  statutes 
may  be  found  which  expressly  make  such  rights  transmissable  in 
this  manner.*  But  one  who  is  wrongfully  seised  cannot  transmit 
a  rightful  interest.^ 

One  cannot  give  by  will  more  than  he  owns.^  And  wherever  one 
has  already  conveyed  or  transferred  property  to  another,  his  sub- 
sequent will  does  not  operate  upon  it.^ 

To  claims  for  damages  founded  in  tort  the  usual  rules  apply  ; 
and  the  sui-vival  of  the  action  or  not,  is  a  material  point  for  con- 
sideration, whether  the  injured  party  died  testate  or  intestate. 
Estates  held  strictly  in  joint  tenancy  pass  by  a  familiar  rule  to  the 
survivor,  while  those  held  in  common  are  transmissible.  But  the 
modern  presumption,  favored  by  legislation,  construes  a  convey- 
ance or  devise  to  two  or  more  to  create  a  common  rather  than  joint 
relation.^ 

§  29.  The  Same  Subject:    Property  acquired  after  the  Will  was 
made. 

There  can  be  no  question  that  the  personal  property  acquired  by 
the  testator  after  making  his  will  and  during  his  life  is  transmis- 

4.  1  Redf.  Wills,  392;  Gresley  v.  7.  See  52  Fed.  Rep.  521,  where  a 
Mousley,  4  De  G.  &  J.  78;  Humes  v.  conveyance  of  land,  though  not  in  tlie 
McFarlane,  4  S.  &  R.  435;  Varick  grantee's  manual  possession,  had 
V.  Jackson,  2  Wend.  166,  19  Am.  Dec.  been  "  delivered."  And  see  Heatley 
571;  Watts  v.  Cole,  2  Leigh,  664.  As  v.  Long,  60  S.  E.  783,  135  Ga.  153. 
to  a  reversion  expectant  upon  an  es-  8.  Mass.  Pub.  Stats.  (1882)  p. 
tate   tail,   see   Steel   v.   Cook,   1   Met.  744;  1  Jarm.  46. 

281.      Statutes    in    some    States    pro-  See,   further,   as   to  what  comprise 

vide  that  no  devi.se  or  bequest  of  any  assets  of  a  deceased  person's  estate, 

property    shall    be    defeated    by    any  Schoul.  Exrs.  &  Admrs.  §§  1198-1228 

disseisin    or    wrongful     dispossession  (Vol.  II). 

by  another.     1  Jarm.  49,  notes.  One   may   dispose   of   an   insurance 

Tlie  riglit  of  entry  against  a  mere  policy  upon  his  own  life  for  the  bene- 

adverse    possessor,     not    founded     in  fit  of  the  estate  by  will.     His  widow 

actual    disseisin,     is     unquestionably  and    children    have   no   claim   thereto 

devisable.    Doe  v.  Hull,  2  D.  &  R.  38;  by  way  of  obstruction.     Williams  v. 

1  Jarm.  50.  Carson,    9    Baxt.    516;    Hamilton    v. 

5.  Smith   V.  ?.iy;Mi,   12   Ire   11.  McQuillan.    82   Me.   204,    19    A.    167;. 

6.  76  N.  E.  856,  210  111.  568.  83  Me.  295;   22  A.  173;   88  Ala.  241,. 

34 


TAET    I.] 


INTRODUCTION. 


§  21> 


sible  to  a  legatee,  under  general  expressions  of  the  will  consistent 
with  that  intent,  and  that  the  testament  may  at  all  events  assume 
to  dispose  of  it.^  To  the  devise  of  after-acquired  real  estate,  how- 
ever, technical  objections  have  long  been  interposed  by  the  courts 
on  the  theory  of  a  seisin  ;  for  the  testator,  it  was  said,  ought  to  be 
seised  of  the  estate  when  he  makes  a  will,  and  so  on  through  all 
the  intervening  period  to  the  date  of  his  death  ;  otherwise,  the 
estate  would  not  be  supported.^  This  rule  of  the  English  law  was 
recognized  in  most  parts  of  the  United  States  until  times  compara- 
tively recent.  But  legislation  has  at  length  changed  it  in  various 
States,  for  one  more  flexible  and  consonant  to  testamentary  intent  ; 
namely,  that  one's  will  may  operate  upon  his  after-acquired  real 
estate  whenever  such  was  his  obvious  intention.^     Parliament  too 


9.  Wait  V.  Belding,  24  Pick.  136; 
Loveren  v.  Lamprey,  2  Fost.  (N.  H.) 
434;  McNaughton  v.  McNaughton, 
34  N.  Y.  201;  Nichols  v.  Allen,  87 
Tenn.  131,  9  S.  W.  430;  Laughlin  v. 
Noreross,  53  A.  834,  97  Me.  33  (in- 
surance policy  taken  out  after  mak- 
ing the  will),  Kennady  v.  Sinnott,  21 
S.  W.  233,  179  U.  S.  606,  38  L.  Ed. 
339;  Harlan  v.  Harlan,  139  S.  W. 
1063,  144  Ky.  817. 

1.  Redf.  Wills,  387;  1  Jarm.  Wills, 
5th  Am.  Ed.  51.  We  have  seen  that 
a  devise  was  formerly  considered  a 
sort  of  appointment  of  particular 
lands  to  a  particular  devisee,  supra, 
§  3.  It  followed,  that,  unlike  a  will 
of  personal  property,  after-acquired 
lands  would  not  pass.  Wind  v. 
Jekyl,  1  P.  Wms.  575;  Minuse  v. 
Cox,  5  Johns.  Ch.  551;  Hays  v.  Jack- 
son, 6  Mass.  149. 

2.  1  Jarm.  WMWs,  51,  326;  2  Redf. 
Wills,  388;  1  Wms.  Exrs.  6,  and  Per- 
kins's note;  Stimson's  Am.  Stat, 
Law,  §  2634.  So  strictly  was  this 
rule  formerly  applied  that  the  plain 


intention  of  Mr.  Girard's  will  was 
thwarted.  Girard  v.  City  of  Phila- 
delphia, 4  Rawle,  323.  And  if  a 
mortgagee  of  land  who  had  made  a 
will,  afterwards  foreclosed  or  per- 
fected his  title  by  taking  an  absolute 
deed  of  the  premises,  a  new  will  or 
codicil  became  needful.  Brighara  v. 
Winchester,  1  Met.  390;  5  Pick.  112; 
16  Am.  Dec.  377. 

For  the  statutes  of  the  diflferent 
States  relating  to  after-acquired 
property,  see  1  Wms.  Exrs.  6th  Am. 
Ed.  6,  Perkins's  note;  1  Jarm.  Wills, 
5th  Am.  Ed.  326,  Bigelow's  note; 
Stimson's  Am.  Stat.  Law,  §  2634. 
The  governing  test  thus  becomes  one 
of  the  testator's  actual  intention,  as 
shown  by  the  will.  See  on  this  point 
Kimball  v.  Ellison,  128  Mass.  41; 
Roney  v.  Stiltz,  5  Whart.  381;  Dick- 
erson's  Appeal,  55  Conn.  223;  Decker 
v.  Decker,  121  111.  341,  12  N.  E.  750; 
Hardenbergh  v.  Ray,  151  U.  S.  112, 
38  L.  Ed.  93;  90  P.  810;  Tarrant  v. 
Core,  56  S.  E.  228,  106  Va.  161; 
Williams    v.    Brice,    51    A.    376,    201 


35 


§    30  THE    LAW    OF   WILLS.  [pART    L 

has  similarly  altered  the  nile  in  England.^  And  thus  does  the 
distinction  of  principle,  once  sharply  drawn  between  after-acquired 
real  and  personal  property  under  a  testamentary  disposition,  grad- 
ually disappear. 

§  29a.  The  Same  Subject:  Property  held  jointly,  etc.;  Partners. 

Ownership  of  property  jointly  or  in  common  or  otherwise  must 
be  respected.  Thus,  a  partner  cannot  bequeath  his  interest  in  any 
specific  article  belonging  to  the  firm,  since  each  partner  has  a  joint 
interest  in  the  whole  partnership  property,  but  not  a  several  inter- 
est in  any  particular  part  of  it.* 

§  30.  Scope  of  Investigation  to  be  pursued. 

Having  set  forth  the  nature  and  origin  of  testamentary  dispo- 
sition, we  now  proceed  to  treat  in  detail  of  the  law  of  wills,  that  is 
to  say,  of  individual  testaments.  In  our  next  volume  we  shall 
discuss  the  settlement  of  estates,  from  the  common  standpoint  of 
testacy  and  intestacy  ;  setting  forth  and  distinguishing  the  general 
functions  of  those  whose  duty  it  is  to  administer,  to  collect,  man- 
age, settle  and  distribute.  Upon  comity  and  the  conflict  of  laws  in 
either  connection  we  shall  dwell  at  sufficient  length  ;  upon  the 
appointment,  too,  of  executors  as  well  as  administrators  ;  upon 
the  probate  of  wills,  the  qualification,  the  giving  of  bonds,  the  issue 
of  letters  testamentary  or  of  administration  ;  upon  assets  and  the 
inventory- ;  upon  the  general  powers,  duties  and  liabilities  of  those 
thus  chosen  to  wind  up  the  deceased  person's  affairs  ;  upon  pay- 
ments and  distribution,  whether  under  a  will  or  where  there  was 

Penn.   595;   Bearing  v.   Selvey,   40   S.  tor  may  be  entitled  to  at  the  time'  of 

E.  478,  50  W.  Va.  4.  his    death,    notwithstanding    he    may 

3.  See   Statute   1   Vict.  c.   26,   §   3,  become   entitled    to    the    same    subse- 

op<'rating    on      English     wills     made  quontly  to  the  execution  of  his  will, 

sinee  1837.     The  power  of   tcstamen-  1  Wms.  Exrs.  preface;   appx. 

tary  disptsition  under  the  celebrated  4.  Spencer  v.  Spencer,  79  S.  E.  291, 

"  Wills  Act  "  is  extended  to  all  such  163  N.  C.  83. 
real  and  i)ersonal  estate  as  tlie  testa- 

36 


PART    I.]  INTKODUCTIOX.  §    30a 

none  ;  and  upon  the  accounting  and  allowances  of  executors  and 
administrators." 

The  present  volume,  though  embracing  necessarily  much  post 
mortem  litigation,  regards  rather  the  living  than  the  deceased 
owner  of  property  ;  and  it  views  him  at  the  point  of  determining! 
tr-  frame  and  reduce  to  proper  form  a  final  testamentary  disposi- 
tion of  his  estate  for  the  just  guidance  of  those  concerned  in  its 
settlement  ;  to  make  a  solemn  charter  which  shall  go  into  effect 
when  he  is  no  longer  of  this  world,  and  by  which  his  surviving 
family,  kindred,  friends,  fellow-citizens  and  posterity  shall  hold 
him  in  remembrance.  To  the  intended  testacy  of  the  individual 
we  shall  confine  our  investigation  for  the  present  volume  ;  and  the 
main  subjects  for  extended  analysis  here  concern  capacity  and  in- 
capacity to  make  a  will,  the  validity  and  formal  requisites  of  wills, 
what  constitutes  revocation,  revival  and  republication,  and  the  gen- 
eral principles  to  be  applied  in  testamentary  construction.  These, 
together  with  a  few  practical  forms  and  suggestions,  should  amply 
suffice  for  an  elementary  treatise  upon  this  interesting  branch  of 
the  law.^ 

§  30a.  Legal  Principles  and  Illustrations. 

The  legal  principles  to  be  discussed  or  considered  under  the  head 
of  Wills  are  comparatively  few,  simple  and  well  settled  ;  but  the 
illustrations  in  our  reports,  where  those  principles  are  applied,  are 
very  numerous  ;  and  this  is  because  litigation  is  earnestly  and 
closely  pressed  by  interested  survivors  over  the  facts  presented  in 
individual  cases  of  testamentary  presentation.  Statutes,  moreover, 
change  many  rules. 

5.  Schoul.  Exrs.  &  Admrs.  passim  ecutor,  the  nature  of  legacies  or  gifts 
(Vol.  II).  by  testament,  etc.,  see  Executors  and 

6.  For  the  probate  and  establish-  Administrators  (Volume  II  of  the 
ment  of  wills,  the  functions  of  an  ex-  present  work,  1915). 

37 


PART  II. 

oapaoit:^  and  incapacity  to  make  a  will. 


CHAPTER  I. 

TESTAMENTARY  CAPACITY  IN  GENERAL. 

§  31.  What  Persons  may  make  a  Will :   General  Rule. 

As  a  general  rule,  any  person  of  sound  mind,  who  has  reached 
the  age  of  discretion,  and  is  under  no  constraint  of  will,  may  br; 
pronounced  capable  of  making  a  testamentary  disposition  of  prop- 
erty in  confonnity  with  the  prescribed  forms  of  law.^  This  funda- 
mental maxim  holds  universally  good  at  the  present  day  in  Eng- 
land and  the  United  States.  Whatever  exceptions  exist  will  appear 
in  the  course  of  the  discussion  upon  which  we  now  enter  ;  and 
those  not  consistent  with  the  maxim  itself  we  shall  confine  to  the 
present  chapter. 

§  32.  Measure   of  Capacity  the   Same  as  to  Property   Real  or 
Personal. 

The  measure  of  capacity  requisite  for  making  a  valid  will  does 
not  materially  differ,  whether  the  disposition  relates  to  real  or  to 
personal  property,  or  embraces  both  kinds.  If  the  testator  at  the 
time  of  making  the  disposition  has  the  sound  mind  and  free  will 
which  the  foregoing  rule  embodies,  the  law  is  satisfied,  whatever 
species  of  property  that  disposition  may  include  ;  otherwise  it  is 
not  satisfied.^ 

There  is  reason,  however,  for  holding  that  one  of  weak  or  failing 
intellect  might  grasp  in  his  mind  and  memory  the  arithmetic  of  a 

1.  Cf.  Swinb.  pt.  2,  §  1.  of  the  goods,  he  could  not  be  of  non- 

2.  6  Co.  23;  Sloan  v.  Maxwell,  2  sane  memory  at  the  time  of  the  mak- 
Green  Ch.  563,  566.  It  is  said  in  6  ing  of  the  will  of  the  lands,  both  be- 
Co.  23 :  "  If  he  were  of  sane  memory  ing  made  at  one  and  the  same  in- 
at  the  time  of  making  the  testament  stant." 

39 


§33  THE  LAW  OF  WILLS.  [pAKT    II. 

simple  and  small  estate  wliere  that  of  a  vast  and  complex  one  would 
tax  him  too  severely  f  whicli  distinction,  as  applied  to  the  credit 
or  discredit  of  the  testament,  involves  properly  a  consideration  of 
the  individual's  business  habits  and  experience  while  in  his  normal 
condition.* 

§  33.  Whether  Crime  disqualifies  from  making  a  Will. 

English  writers  have  made  crime  an  exception  to  the  rule  of  tes- 
tamentary capacity  in  various  instances.  Indeed,  the  old  common 
law  with  great  severity  inflicted  the  penalty  of  incapacity  upon 
many  classes  of  so-called  guilty  persons  ;  not  so  much  tO'  humiliate 
them,  we  may  suppose,  as  for  enabling  the  Crown  the  more  surely 
to  seize  upon  their  property  and  utterly  confiscate  it.  Swinburne 
enumerated  among  those  who  were  thus  legally  disqualified  in  his 
day,  slaves,  villeins,  captives,  prisoners,  traitors,  felons,  heretics, 
apostates,  manifest  usurers,  incestuous  persons,  libellers,  suicides, 
outlawed  persons,  those  excommunicated  and  prodigals  ;  a  promis- 
cuous list  in  which  wrong-doers,  unfortunates,  and  those  of  cour- 
ageous conscience  are  found  unhappily  blended.^  Scarcely  any  of 
these  disqualifications  now  exist  ;  for  in  the  latest  edition  of  Jar- 
man  it  is  shown  not  only  that  treason,  felony  punished  by  death, 
and  suicide  long  remained  on  the  list  because  of  a  legal  forfeiture 
following  conviction  which  legislation  had  gradually  restricted,  but 
that  a  statute  of  1870  sweeps  away  all  attainder,  corruption  of 
blood  and  escheat,  in  such  instances,  and  provides  in  peculiar 
terms  for  a  beneficial  administration  of  the  convict's  property 
instead.®  Forfeiture  consequent  upon  outlawry  appears,  in  fine,  to 
be  the  last  remnant  of  the  old  law  of  criminal  disqualification.'^ 

3.  Slieldon  v.  Dow,  1  Dcmarest,  and  ca<ses  cited;  Bateman's  Trust, 
503,  nil.  Re,    L.    R.    15    Eq.    355;    Norris    v. 

4.  This  whole  subject  will  be  dis-  Chambres,  29  Beav.  258;  7  Jur.  N.  S. 
eu.sHed  at  length   in  f".  TV.  post.  59,  712. 

5.  Swinb.  pt.  3.  §  7;  1  Picdf.  Wills,  7.  Proviso  in  Stat.  33  and  34  Vict. 
119;   2  Bl.  Com.  499.  c.   23,   cited   1   Jarm.   43.      Outlawry, 

6.  S('<'  Stat.  33  and  34  Vi.t.  c.  23  by  the  old  lavv,  produced  an  incapa- 
(1870);    also    1    .Tanii.    Wills,    43-4.")       city  duiiii^'  the  time  one  remained  an 

40 


CHAP.    I.]  TESTAMENTARY  CAPACITY  IN"  GENERAL.  §    34 

All  this  learning  concerning  the  criminal  disability  to  make  a 
will  is  of  little  practical  consequence  in  the  United  States  in  these 
days.  Forfeiture  of  estate  beyond  the  life  of  the  person  attainted 
and  corruption  of  blood  are  condemned  expressly  by  the  Constitu- 
tion of  the  United  States  and  in.  the  jurisprudence  of  most  States, 
even  in  the  extreme  but  uncertain  crime  of  treason  ;  while  under 
some  of  our  local  codes  the  power  of  forfeiture  is  wholly  denied 
to  the  State.*  Such  has  been  the  beneficial  influence  of  public 
opinion  in  this  country  for  the  past  century.  In  Kentucky  it  is 
decided  that  a  person  under  sentence  of  death  may  make  his  will  f 
and  there  is  no  reason  to  doubt  that  the  same  rule  obtains  through- 
out the  United  States. 

§  34.  Whether  Aliens  may  make  Testamentary  Disposition. 

The  ca^e  of  aliens  supplies  another  instance  of  legal  incapacity 
which  the  old  law  maintained  more  zealously  than  the  enlightened 
policy  of  these  days  commends.  Alien  enemies  and  alien  friends 
are  here  to  be  distinguished.  Alien  enemies  seem  affected  for  the 
time  being,  with  a  sort  of  criminal  taint,  or,  at  all  events,  the  law 
of  nations  thinks  fit  to  harass  them  in  a  state  of  war  with  the 
government  to  which  they  owe  allegiance  ;  and  hence  the  maxim 
which  denounces  persons  of  this  class  as  incapable,  without  sov- 
ereign license  of  the  hostile  jurisdiction,  to  make  any  testamentary' 
disposition  of  their  property  or  even  to  reside  or  do  business  there.-^ 
As  towards  alien  friends,  the  favor  shown  is  greater  and  requires 
further  exposition. 

Alien  friends,  or  aliens  whose  country  is  at  peace  with  the 
jurisdiction  in  question,  have  by  the  English  common  law,  which 
has  been  adopted  with  local  variations  in  most  of  the  American 

outlaw;  but  with  reference,  it  would  8.  2    Kent    Com.    385,    386;    U.    S. 

appear,  to  goods  and  chattels  rather  Constitution,  Art.  III.  §  3. 

than    lands,    and    not    without    some  9.  Rankin  v.  Rankin,  6  Monr.  531, 

subtle  distinctions  in  the  guilty  per-  17  Am.  Dec.  161. 

son's    favor.      See    2    Bl.    Com.    499;  1.  Bac.  Abr.  Wills,  B.  17;   1  Wms. 

Swinb.  pt.  2,   §   21;   Wms.  Exrs.   7th  Exrs.  13. 

Eng.  Ed.  65. 

41 


§  35  THE  LAW  OF  WILLS.  [pAET  II. 

States,  been  treated  as  incompetent  to  devise  real  estate,  or,  indeed, 
to  hold  it  at  all.^  Bnt  tliej  may  dispose  of  their  personal  estate  at 
pleasure.^  For  as  Lord  Chancellor  Cottenham  lias  observed :  "  The 
incapacity  of  aliens  to  hold  laud  is  founded  upon  political  and 
feudal  reasons  which  do  not  apply  to  money."  ■*  And  hence  an 
idien's  purchase  of  real  estate  is  not  protected  for  his  own  benefit  ; 
not  even  though  he  should  take  the  conveyance  in  the  name  of  a 
trustee,  leaving  a  vested  interest  in  the  land  to  himself  ;  ■*  and  yet 
if  the  trust  created  were  to  give  him  simply  a  beneficial  interest  in 
the  pecuniary  proceeds  arising  from  a  sale  of  land,  the  courts 
would  protect  it  as  valid.^  And  pursuing  this  distinction,  an  alien 
may,  as  we  find,  be  made  a  legatee,  though  not  a  devisee,  where  a 
conversion  of  real  estate  into  money  has  given  rise  to  the  fund.^ 

§  35.  The  Same  Subject:    Theory  of  a  Devisable  Title. 

The  theory  of  common  law  as  to  an  alien  friend's  devise  of  lands 
regards  it,  nevertheless,  as  voidable  by  the  government  rather  than 
absolutely  void.  The  Crown  became  entitled  to  the  real  estate 
after  office  found  ;  and  this  whether  the  alien  himself  was  enjoy- 
ing the  property  during  life,  or  his  devisee  after  death  ;  so  that  it 
was  fair  to  assert  that  a  title,  though  a  defeasible  one,  vested  in  the 
one  case  or  the  other.*  The  situation  was  harder  where  the  alien 
died  without  having  willed  them  away;  for  then  the  land  escheated 
to  the  sovereign  without  office  found,  on  the  fiction  that  an  alien 
can  have  no  heirs. ^  Such  was  the  doctrine  long  upheld  in  Eng- 
land ;  and  such,  too,  is  the  announcement  of  the  law  in  our  Ameri- 
can States,  independently  of  legislation  to  the  contrary.     In  other 

2.  Co.  Lit.  2  b;  1  Wms.  Exrs.  12.  5.  1  Rolle  Abr.  194,  pi.  8;  Aleyn. 
This    incapacity    extends    to    chattels       14. 

real.     Co.  Lit.  2  b.     But  cf.  Fourdrin  6.  1  Beav.  79;  4  My.  &  Cr.  525. 

V.  Gowdey,  3  My.  &  K.  383.  7.  Craig   v.   T^slie,   3    Wheat.   563, 

3.  1  Wms.  Exrs.  12;  Craig  v.  Les-  4  L.  Ed.  460;  Anstice  v.  Brown,  6 
lie,  3  Wheat.  563,  589;  Polk  v.  Rals-  Paige,  448;  1  Redf.  Wills,  10.  And 
ton,  2  Humph.  500;   Bac.  Abr.  Wills,  see  supra,  §  23. 

B.  8.   1  .Tarm.  Wills,  41;   Sliep.  Touch. 

4.  ])u     Hourmclin     v.     Sholrtn,     1       404. 

Beav.  79;  s.  c.  4  My.  &  Cr.  525.  9.  Co.  Litt.  2  b;   1  Jarm.  Wills,  41, 

42 


CHAP.    I.]  TESTAMENTARY  CAPACITY  IN  GENERAL.  §    3G 

words,  an  alien  might  take  real  estate  by  deed,  or  devise  or  other 
act  of  purchase,  but  he  could  not  hold  against  the  State;  his  estate, 
therefore,  was  defeasible,  good  against  all  but  the  State,  and  good 
against  the  State  until  proceedings  instituted  by  inquest  of  office 
on  its  behalf  had  been  carried  to  judgment.^  And  this  disability 
of  aliens  to  hold  real  estate  extends,  pari  passu,  in  principle  to 
their  devise  of  such  real  estate  and  the  devolution  of  title  therein 
to  the  devisee.^  But  an  alien  could  not  take  land  by  descent,  be- 
cause the  law  would  not  cast  the  descent  upon  one  who  could  not 
by  law  hold  the  estate ;  ^  nor,  on  the  other  hand,  could  the  inherit- 
ance of  an  alien's  lands  vest  in  others  when  he  had  died  without 
having  devised  them.* 

§  36.  The  Same  Subject:  Modern  Statutes  affecting  the  Dis- 
ability. 
By  the  English  Naturalization  Act  of  1870  these  legal  disa- 
bilities of  aliens  appear  to  have  been  substantially  abolished  in 
favor  of  a  policy  whose  aim  it  is  to  protect  equally  in  Great 
Britain  the  acquisitions  of  natives  and  foreigners ;  for  by  its  second 
section  an  alien  is  empowered  to  take,  acquire,  hold  and  dispose 
of  real  and  personal  property  of  every  description,  in  the  same 
manner  as  by  a  natural-born  British  subject ;  and  it  is  further  de- 
clared that  a  title  to  real  and  personal  property  of  every  descrip- 
tion may  be  derived  through,  from,  or  in  succession  to  an  alien 
in  the  same  manner  in  all  respects  as  through,  from,  or  in  suc- 

1.  Wilbur  V.  Tobey.  16  Pick.   179;  alien   cannot   be   tenant   by   the   cur- 
Waugh  V.  Riley,  8  Met.  295.  tesy,  for  that  is  an  estate  which  vesta 

2.  2   Kent   Com.   53,   69;    Marshall  by   act  of  law.     Reese  v.   Waters,   4 
V.  Conrad,  5  Call,  364.  W.  &  S.  145;   Foss  v.  Crisp,  20  Pick. 

3.  Wilbur  v.  Tobey,  and  Waugh  v.  121. 

Ripley,   supra;  Fairfax  v.  Hunter,  7  4.  The  land  instantly  "  escheats  to 

Cr.    603;    Craig   v.   Leslie,    3    Wheat.  the    people"    in    such    a    case.      Per 

563,  4  L.  Ed.  460;   Fiott  v.  Common-  Chancellor  Kent  in  Mooers  v.  White, 

wealth,    12    Gratt.    564;     Jackson    v.  6  Johns.  Ch.  360.     To  the  same  effect 

Adams,  7  Wend.  367,  and  cases  cited;  see  Montgomery  v.   Dorion,   7  N.   H. 

Rubeck    v.    Gardner,    7    Watts,    455;  475. 
Ramires    v.    Kent,    2    Cal.    558.      An 

43 


§    36  THE   LAW   OF   WILLS.  [pABT    II, 

cession  to  a  natural-bom  Britisli  subject.^  The  language  of  this 
act  is  not  confined  to  alien  friends,  nor  does  it  distinguish  in  terms 
between  aliens  resident  in  England  or  non-residents.^ 

Earlier  legislation  removing  wholly  or  in  part,  or  upon  the 
compliance  of  formalities,  the  disabilities  of  aliens  to  take,  hold, 
or  transmit  estate,  real  as  well  as  personal,  may  be  found  in  most 
of  the  American  States.  And  provisions  thus  modifying  in  a 
liberal  direction  the  disabilities  of  aliens  are  embodied  in  some 
of  the  more  recent  State  constitutions.^  As  our  present  study  con- 
cerns only  the  right  of  an  alien  to  devise  or  become  a  devisee,  these 
statute  changes  need  not  be  examined  in  detail;  but  their  policy 
favors  leaving  titles  in  land  undisturbed  on  account  of  the  alienage 
of  any  former  owner,  so  that  the  State  may  be  no  longer  the  sub- 
verter  in  effect,  but  the  protector  of  such  acquisitions.  Land  being 
held  subject  so  universally  to  regulation  by  the  local  sovereignty, 
the  several  States  seem  to  have  framed  their  independent  systems 
as  to  the  tenure  of  an  alien,  with  very  little  reference  to  the  na- 
tional government  or  to  one  another;  and  so  far  as  resident  aliens 
in  a  State  are  concerned  in  this  respect  the  local  laws  may  well 
be  left  to  operate.  But,  dictated  though  these  civil  privileges  often 
are  by  a  just  and  liberal  policy,  they  must  (to  use  the  language 
of  Chancellor  Kent)  be  taken  to  be  strictly  local ;  and  until  a  for- 
eigner is  duly  naturalized,  in  accordance  with  the  Act  of  Congress^ 
he  is  not  entitled  in  any  other  State  to  any  other  privileges  than 
those  which  the  laws  of  that  State  allow  to  aliens.^  Those  privi- 
leges and  immunities  of  citizens  in  the  several  States  which  our 
federal  constitution  secures  applies  only  to  natural-born  or  duly 
naturalized  citizens ; '  and  the  power  of  naturalization,  once  exer- 

5.  Act  33  Vict.  c.  14,  §  2  (1870).  7.  See  Lumb  v.  Jenkins,  100  Mass. 
There  are  provisos  to  this  section,  not  527;  2  Kent  Com.  70,  71;  1  Wms. 
important  to  cite,  which  prevent  the      Exrs.  Perkins's  note. 

act  from  having  a  retrospective  oper-  8.  2  Kent  Com.  70,  71. 

ation.  9.   Ih.     And  soe  U.  S.  Const.  Art,  L 

6.  1  .Jarm.  Wills,  41,  comparing   7  §  8;  ib.  Art.  IV.  §.2. 
anrl    8     Vict.    c.    06,    §    3;    1    Chitty 

Contr.    nth    Am.    Kd.   2r/.). 

44 


CHAP.    I.]  TESTAMENTARY  CAPACITY  IN  GENER.\L.  §    37 

cised  by  the  old  thirteen  States  apart,  has  passed  since  1789  to 
the  Congress  of  the  United  States,  that  it  may  be  uniformly  and 
efficiently  exercised  by  that  sovereignty  which  declares  war,  makes 
peace,  forms  treaties  and  regulates  intercourse  with  foreign  na- 
tions, whose  subjects  are  to  us  aliens,  as  citizens  of  the  United 
States  are  to  them. 

§  37.  Whether  a  Sovereign  may  make  a  Will. 

It  is  a  matter  of  some  consequence  in  Great  Britain,  though  none 
in  this  country,  whether  the  reigning  sovereign  may  make  a  will. 
The  property  which  belongs  to  himself  and  not  to  the  State  or  his 
people,  he  ought  on  principle  to  be  capable  of  transmitting  by 
his  testament,  though  not  Crown  lands  or  moneys  appropriated 
to  the  public  service.  A  statute  of  George  III.  recognizes  this  dis- 
tinction, by  pronouncing  all  personal  property  which  may  have 
been  applied  for  the  sovereign's  privy  purse  not  only  disposable 
by  last  will  and  testament,  but  subject  as  assets  to  the  payment  of 
such  private  debts  as  his  majesty  may  have  left  behind  him.^  But 
as  earlier  jurists  of  the  realm  dreaded  to  touch  the  delicate  inquiry 
what  things  a  sovereign  might  transmit  by  will  as  his  own,^  so  have 
the  English  spiritiual  courts  positively  disclaimed  all  jurisdiction 
to  regulate  the  settlement  of  a  royal  estate,  or  even  to  admit  a 
royal  will  to  probate.^ 

1.  Goods  of  George  III.  3  S\v.  &  199;  1  Add.  262.  In  this  case  Sir 
Tr.  199;  1  Add.  255;  1  Wms.  Exrs.  John  Nicholl  observed  that  no  sover- 
13-15.  eign  will  had   ever  been  probated  in 

2.  In  the  16th  year  of  King  Rich-  the  English  ecclesiastical  courts.  Tlie 
ard  II.  it  was  assented  in  full  parlia-  will  of  Henry  VIII.,  or  rather  a  copy 
ment  that  the  king,  his  heirs  and  sue-  of  it,  had  been  deposited  in  the  regis- 
cessors,  might  lawfully  make  their  try;  but  merely,  as  it  would  appear, 
testaments.  This  question,  says  by  way  of  safe  custody  or  public  in- 
Godolphin,  is  resolved  in  the  affirma-  formation.  But  in  a  single  obscure 
tive;  but  of  what  things  is  such  a  instance  there  was  something  like  a 
questio  status,  as  is  safest  resolved  reference  to  this  jurisdiction,  namely, 
by  a  noli  me  tungere.  Godolph.  pt.  with  reference  to  the  will  of  Henry 
1,  c.  7,  §  4.  IV.   whose   effects   Henry  V.   took   at 

3.  Goods  of  Geo.  III.  3   Sw.  &  Tr.  their  appraised  value.     1  Add.  262. 

45 


§    38  THE   LAW   OF   WILLS.  [pAiiT    II. 

§  38.  Wills  of  Seamen,  etc. 

Seamen  and  soldiers  are  treated  with  peculiar  indulgence  in  our 
law,  as  a  class  of  persons  not  only  entitled  to  the  public  gratitude, 
but  requiring  in  a  measure  public  protection  against  their  own 
improvidence  and  the  wiles  to  which  they  are  exposed.  Hence  are 
found  various  provisions  in  English,  if  not  American,  statutes, 
which  the  courts  of  probate  jurisdiction  interpret  as  rendering  the 
wills  of  seamen  void  when  made  by  way  of  security  for  debt;  a 
security  of  which  the  creditor  takes  the  greater  advantage,  know- 
ing that  his  debtor  may  die  suddenly  when  far  away,  and  so  im- 
poses a  sort  of  duress  to  obtain  it.*  The  equity  of  such  statutes 
does  not,  however,  extend  beyond  the  classes  specified.^ 

4.  1  Wms.  Exrs.  51,  52;   Zacharias  5.  2    Cas.    temp.    Lee   87;    1    Wms. 

V.  Collis,  3  Phillim.  190.  Exrs,  52. 

46 


CHAP.    II.]  INCAPACITY    OF    INFANTS.  §    40 


CHAPTER  II. 

INCAPACITY  OF  INFANTS. 

§  39.  Incapacity  of  Infants  founded  in  their  Indiscretion. 

The  incapacity  of  infants  to  make  a  will  is  founded  in  their 
indiscretion ;  and  the  policy  of  declaring  them  under  a  disability 
in  this  respect  is  sound.  For  if  incapable  at  law  of  making  a 
binding  transfer  of  what  he  owns  to  take  effect  while  alive  and 
before  reaching  majority,  still  less  should  an  infant  be  thought  a 
suitable  person  to  regulate  by  a  comprehensive  act  which  he  does 
not  live  to  recall  at  full  age  the  disposition  of  his  whole  estate  at 
his  death;  thereby  preventing  the  State's  equal  scheme  of  distri- 
bution from  operating,  by  an  assertion  of  will  which  sinister  in- 
fluences artfully  surrounding  him  may  in  reality  have  produced, 
rather  than  his  own  free  choice. 

§  40.  Earlier  Rule  more  Favorable  to  Infants'  Wills  than  that 
of  the  Presnt  Day. 

The  earlier  rule  was  more  favorable  to  the  infant's  right  of  tes- 
tamentary disposition  than  that  which  prevails  in  England  and 
America  at  the  present  day.  Indeed,  the  doctrine  of  the  Roman 
civil  law,  to  which  the  English  ecclesiastical  courts  gave  assent, 
was,  that  infants  at  the  age  of  fourteen,  if  males,  and  twelve,  if 
females,  might  make  wills  of  their  personal  property.^  Nor  did 
our  canonists  stand  alone  in  granting  such  permission;  for  com- 
mon lawyers  maintained  the  justice  of  allowing  wills  made  at  that 
early  stage  of  life,  the  king's  bench  refused  prohibitions  when 
applied  for  to  restrain  the  spiritual  courts  from  passing  such  in- 
struments to  probate,  and  in  various  instances  the  practice  received 
the  express  sanction  of  courts  of  chancery.^     The  age  of  permis- 

1.  Swinb.  pt.  2,  §  2;  Godolph.  pt.  497;  2  Mod.  315;  Gill).  Eq.  Rep.  74; 
6,  e.  8,  §  8;  Deane  v.  Littleficld.  1  Holyland,  Ex  parte,  11  Ves.  11.  But 
Pick.  239;  1  Wms.  Exrs.  7tli  Ed.  16;  the  old  books  make  some  contradic- 
2  Bl.  Com.  497.  tory  assertions  on  this  subject.  Lord 

2.  1    Wms.   Exrs.    16;    2    Bl.    Com.  Coke   states   eighteen   to   be   the   age. 

47 


§    41  LAW    OF    WILLS.  [pART    II. 

sion  thus  accorded  was  the  same  substantially,  as  that  which  in- 
vested the  infant  with  a  right  to  consider  his  guardianship  for  nur- 
ture ended,  and  to  elect,  or  at  all  events  nominate,  a  guardian  for 
himself.^ 

This  permission,  we  should  further  observe,  was  confined  to  an 
infant's  personal  property.  From  the  Statute  of  Wills  of  32  and 
34  Henry  VIII.,  infants  under  the  age  of  twenty-one  were  ex- 
pressly excepted ;  ^  and  prior  to  that  statute,  as  we  have  shown,  not 
even  an  adult  subject  could  be  pronounced  capable,  under  the  Eng- 
lish law,  of  making  a  devise  of  land  from  the  days  of  William  the 
Conqueror.^ 

§  41.  The  Same  Subject. 

From  this  doctrine  of  testamentary  capacity,  during  the  latter 
years  of  minority  with  regard  to  personal  property  flowed  certain 
consequences  described  by  the  older  books.  In  computing  the  legal 
age  of  a  person,  whether  for  determining  majority  or  otherwise, 
the  day  of  birth  should  be  included  ;  *  hence,  as  fractions  of  a  day 
are  not  reckoned,  the  testament  of  an  infant  born  February  1, 
1700,  would  be  good  in  case  of  a  male,  under  the  rule  of  capacity 
we  are  considering,  though  made  January  31,  1714;  or,  in  case 
of  a  female,  though  made  January  31,  1712.^     The  will  of  course 

Co.  Lit.  89  b.     Others  mention  seven-  enabled  an  infant  to  devise  even  real 

teen,    and   others,   again,    twenty-one.  estate.     See  2  Anders.  12. 

Co.   Lit.   89  b,  note  by  Hargrave;    2  6.  6  Mod.   259;    Schoul.  Dom.   Rel. 

Bl.  Com.  497,  Christian's  note.     The  5th  Ed.  §   391;   2  Kent  Com.   233;    1 

rule   of   the   text   may   be    concluded,  Bl.  Com.  463;  State  v.  Clarke,  3  Har- 

hovvever,    the    correct    one.      lb.      No  ring.  557.     So,  too,  a  person  attains 

local  custom  can  be  set  up  to  sustain  his    twenty-fifth    year    when    he    be- 

the  will  of  a  male  infant  made  before  comes  twenty-four.     Grant  v.  Grant, 

he  was  fourteen  years  old.     Com.  Dig.  4  Y.  &  C.  256. 

Devise  H,  2;  1  Wms.  Exrs.  17.  7.  1  Sid.   162;   Bac.  Abr.  Wills,  B. 

3.  Schoul.  Dom.  Rel.  5th  Ed.  §§  2;  Swinb.  pt.  2,  §  2.  pi.  7.  Judge 
2S.">,  2S9.  Redfield    (while  admitting  that  tliere 

4.  2   Bl.   Com.  3  74,  375.  is   an   unbroken   array  of   authorities 

5.  f^iipra,  §  15.  1  .Tarm.  Wills,  33,  against  him)  objects  on  principle  to 
obsyrvcs  that  custom   in  some  places  this    mode    of    computing    the    period 

48 


■CHAP. 


II.] 


INCAPACITY    OF    INFANTS. 


§    41 


woiild  operate  as  a  valid  disposition  of  chattels  without  and  even 
against  the  consent  of  parent  or  guardian.^  Likewise,  the  infant's 
express  approval  of  a  will  made  earlier  and  during  the  period  of 
nurture  would  establish  it  as  strong  and  effectual^  if  given  after 
accomplishing  this  age  of  testamentary  capacity.^  A  ratification, 
so  to  speak,  similar  to  that  by  which  one  on  reaching  full  age 
validates  the  contracts  of  minority/  seems  here  to  operate;  yet 
the  mere  circumstance  of  an  infant  having  lived  some  time  after 
the  age  when  he  became  capable  of  making  his  will,  should  not 
without  republication  (so  say  these  older  books)  give  validity  to 
one  made  during  his  incapacity."  Indeed,  this  indulgence  of  a 
ratification  at  all  transcends  the  bounds  of  good  sense ;  and  the 
better  principle  for  modern  times,  under  statutes  which  insist  upon 
written  wills  and  a  fornial  execution,  is  that  a  will  made  during 
the  age  of  incapacity  can  only  be  rendered  valid  at  one's  capable 
age  by  a  republication  with  all  the  usual  formalities. 


from  a  person's  birth,  so  that  in 
legal  eflFect  capacity  is  sometimes  car- 
ried back  "  two  full  days  beyond  the 
real  date."  1  Redf.  Wills,  20',  21. 
The  objection  is  not  without  force, 
so  far  as  giving  validity  to  wills 
made  far  back  in  infancy,  is  con- 
cerned; for  the  greater  the  restric- 
tions judicial  construction  may  place 
upon  such  wills  the  better.  Yet  there 
can  be  no  question  that  the  legal  date 
of  reaching  majority  ought  to  be 
clearly  and  definitely  established  by 
the  law's  computation,  and  if  so,  the 
difference  of  about  a  day  for  adjust- 
ing the  rights  and  burdens  of  full 
capacity  to  the  new  adult  appears  by 
comparison  of  very  little  consequence. 
The  present  rule  for  computing  one's 
majority  is  convenient  enough  so 
long  as  it  remains  unshaken. 

But  the  usual   mode  of  computing 
the  period  under  a  will  for  the  per- 


formance of  some  duty  (aside  from 
questions  relating  to  one's  age)  ap- 
pears to  view  the  anniversary  from 
the  day  of  computation  and  not  the 
day  previous.  The  day  of  a  testa- 
tor's death  is  excluded  from  the 
reckoning  of  such  a  period.  And 
doubtless  the  rule  in  all  popular  cele- 
brations of  an  anniversary  differs 
from  this  common  law  reckoning  of 
one's  majority.     See  1  Redf.  lb. 

8.  Swinb.  pt.  2,  §  3,  pi.  6;  Bac. 
Abr.  Wills,  B.  1. 

9.  1  Sid.  162;  Swinb.  pt.  2,  §  2, 
pi.  7. 

1.  Schoul.  Dom.  Rel.  5th  Ed.  §§ 
432-448. 

2.  1  Sid.  162;  Swinb.  pt.  2,  §  2, 
pi.  5;  1  Wms.  Exrs.  17;  1  Redf. 
Wills,  18,  19.  But  cf.  the  inaccurate 
language  of  1  Jarm.  33,  citing  Hinck- 
lev  V.  Simmons,  4  Ves.   160. 


49 


§    43  LAW    OF    WILLS.  [pART    II. 

§  42.  Infants'  Will  Invalid,  where  Want  of  Discretion,  etc.,  is 
shown. 
While  tlie  will  thus  executed  could  not  be  objected  to  merely 
because  the  testator  was  a  minor,  yet  if  the  testator  was  shown  not 
to  be  of  sufficient  discretion,  that  would  overthrow  the  testament, 
as  Blackstone  says,  whether  his  age  were  fourteen  or  four  and 
twenty.^  Xor  would  indiscretion  alone  be  a  natural  objection  to 
so  young  a  person's  will,  but  the  undue  constraint  and  influence 
besides,  which  adults  seeking  to  regulate  his  disposition  might 
exert  upon  him.  Notwithstanding  all  this,  there  is  an  instance 
reported  in  which  the  will  of  a  school-boy  only  sixteen  years  old 
in  favor  of  his  schoolmaster  was  admitted  to  probate  in  the  Eng- 
lish ecclesiastical  courts  during  the  eighteenth  century  where  no 
evidence  of  fraud  or  undue  influence  or  constraint  was  shown.* 

§  43.  Modern  Legislation  treats  the  Wills  of  Infants  with  Dis- 
favor. 
Modern  legislation  treats  the  wills  of  all  infants,  male  or  fe- 
male, with  obvious  disfavor.  Thus,  the  English  statute  1  Vict. 
c.  26,  expressly  declares  that  "  no  will  made  by  any  person  under 
the  age  of  twenty-one  years  shall  be  valid."  ^  The  latest  enact- 
ments of  a  majority  of  American  States  are  to  the  same  purport, 
establishing  the  age  of  twenty-one  as  that  at  which  a  person  of 
either  sex  ceases  to  be  disqualified  from  making  a  will  either  of 
real  or  personal  estate;  and  among  these  States  are  Maine,  New 
Hampshire,  Massachusetts,  New  Jersey,  Pennsylvania,  North  and 
South  Carolina,  Florida,  Mississippi,  Texas,  Ohio,  Indiana,  Kan- 
sas, Kentucky,  Michigan,  Minnesota,  and  Nebraska.^  But  other 
States  vary  in  provisions  concerning  the  testamentary  capacity  of 
infants.  In  California  and  Connecticut,  for  instance,  eighteen 
years  is  taken  as  the  testamentary  age  for  both  males  and  females ; 

3.  2  Bl.  Com.  497;  Deanc  v.  Littk-  5.  See   1   Vict.   c.   26,   §    7,   cited    1 
field,  1  Pick.  243.                                           Wms.    Exrs.    preface,    and    2    Jarni. 

4.  Arnold  v.  Earle,  Cas.  temp.  Lee,       Wills;  appendix. 

529;    Ms8.    June    5,    1758;     1    Wms.  6.  4   Kent   Com.   506;    1   Jarra.   32, 

KxrH.  16.  American  note. 

50 


CHAP,    li.^  INCAPACITY    OF    iNFANTa.  §    44: 

while  various  codes  adopt  a  still  earlier  standard  of  discretion, 
distinguishing,  however,  in  some  instances  between  males  and  fe- 
males, or  even  between  females  married  and  unmaiTied.  In  New 
York,  by  a  strange  example,  the  age  for  making  a  will  of  personalty 
is  eighteen  in  males  and  sixteen  in  females ;  nor  is  this  the  only 
State  or  the  only  quarter  of  the  Union  where  the  line  is  drawn 
between  the  kinds  of  property,  so  that  an  infant's  personalty  but 
not  his  real  estate  may  be  disposed  of  by.  testament  before  he 
reaches  the  age  of  twenty-one ;  ^  an  antiquated  distinction,  it  would 
seem,  when  the  immense  expansion  of  wealth  in  personalty  during 
the  present  century  is  considered. 

§  44.  Infant's  Appointment  of  a  Testamentary  Guardian. 

It  is  worth  observing  here  that  the  policy  of  permitting  an  infant 
to  create  a  testamentary  guardianship  has  changed  correspondingly 
within  the  last  two  hundred  years.  Under  the  statute  of  12  Car. 
II.  c.  24,  which  instituted  testamentary  guardianship,  any  father, 
whether  infant  or  adult,  might  by  last  will  or  testament  dispose  of 
the  custody  and  tuition  of  his  child,  so  as  to  carry  over  the  entire 

7.  States   as  wide   apart  as   Rhode  most      matters       easily      influenced. 

Island,     New     York,    Virginia,     Ala-  should,    it    is    held,    be    subjected    to 

bama,    Missouri,    and    Oregon    follow  close   scrutiny,   where   such   guardian 

this    latter   principle    in   their   codes.  took  an  active  part  in  its  execution. 

For  thees   statutes    (which   are  cited  Seiter  v.  Straub,  1  Demarest   (N.  Y. ) 

in  1  Jarm.  Wills,  32,  Bigelow's  note;  364.    This  case  bears  strongly  against 

4  Kent  Com.  506),  see  more  particu-  the  policy  of  the  New  York  Code,  in 

larly    the    language    of    the    several  permitting  wills  of  any  kind  to  stand, 

Codes,    where    minute    differences    of  when  made  by  persons  so  young.     An 

expression  will   be  found,   and  where  infant  in  New  York  cannot,  of  course, 

legislation    is    liable    to    change    the  devise   his   land.      47   Hun,   109.      As 

local  rule  any  year.  to  the  Connecticut  rule  permitting  a 

Scarcely    any    American    cases    of  valid  will   at  eighteen,   see   64   Conn, 

consequence  have  arisen  on  this  sub-  344,    30    A.    55.      And    see    Banks    v. 

ject.      See   Moore   v.   Moore,   23    Tex.  Sherrod,    52    Ala.    267;    Holzman    v. 

637;   7  Lea.  240.     A  will  in  favor  of  Wager,    79   A.   205,   114  Md.   222    (a 

her  guardian,  made  by  a  female  ward  leasehold  interest), 
of    sixteen,    in    poor    health,    and    in 

51 


§    -i-i  LAW    OF    WILLS.  [pART    IL 

management  of  that  child's  property,  during  its  minority  or  for 
any  less  period  prescribed.^ 

But  since  the  statute  of  1  Vict.  c.  26,  an  infant  father  cannot 
at  English  law  create  a  testamentary  guardianship  at  all.* 

8.  Schoul.  Dom.  Rel.  §  287.  writing  in  the  nature  of  a  will  in  ex- 

9.  lb.  See  language  of  §  1  of  Stat.  ercise  of  a  power,  to  the  appointment 
1  Vict.  c.  26,  to  the  effect  that  the  of  testamentary  guardians  and  to 
word  "  will  "  under  that  act  shall  ex-  any  other  testamentary  disposition, 
tend  to  an  appointment  by  will  or  by 

52 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN.  §    45 


.   .      ■        -  CHAPTER  III. 

INCAPACITY  OF  MARRIED  WOMEN. 

§  45.  Incapacity  at  Common  Law  arising  from  Coverture. 

The  incapacity  of  married  women  to  make  wills  has  its  root  in 
our  common-law  principle  of  coverture,  by  which  husband  and 
wife  were  treated  as  one  person  in  such  a  sense  that  the  woman 
took  her  place  under  the  cover  or  protection  of  her  lord ;  her  rights 
not  less  than  her  obligations  becoming  suspended,  for  the  better 
harmony  and  peace  of  the  marriage  state,  while  the  husband  ex- 
ercised an  undisputed  sway  as  head  of  his  household.^  By  the 
fundamental  terms  of  their  nuptial  union,  the  husband  remained 
capable  of  making  his  own  will,  though  the  wife  if  surviving  could 
claim  her  dower,  or  life-thirds  interest,  in  his  real  estate.  But 
the  wife,  on  the  other  hand,  parted  with  all  control  over  her  own 
property  while  coverture  lasted,  presented  her  spouse  outright  or 
conditionally  with  the  whole  of  her  personal  property,  and  con- 
ferred upon  him  the  usufruct  during  marriage  of  her  real  estate, 
which  was  enlarged,  if  a  child  was  born  alive,  to  a  right  by  curtesy 
lasting  for  his  whole  lifetime.^  With  the  property  brought  into 
the  marriage  state  thus  parcelled  out  by  the  common  law,  and  a 
surviving  husband  entitled,  moreover,  to  administer  upon  the  estate 
of  his  deceased  wife  for  his  own  benefit  and  recover  her  outstand- 
ing personal  property  to  his  own  use  and  enjoyment,^  it  is  not 
strange  that  the  female  spouse  was  under  the  disability  of  making 
her  own  will.  For  the  law  itself  regulated  the  descent  of  her  real 
estate,  excepting  her  expressly  from  the  Statute  of  Wills,  34  and 
35  Hen.  VIII.  c.  5 ;  *  while  as  to  her  goods  and  chattels,  her  per- 
sonalty, any  will  she  might  be  declared  capable  of  making,  would 
necessarily  be  in  derogation  of  the  rights  of  her  surviving  husband. 

1.  Schoul.  Hus.  &  Wife,  §  54;  1  Bl.  409;  Schoul.  Exrs.  &  Admrs.  §§  1098, 
Com.  442,  445.  1106,  1126   (Vol.  II). 

2.  Schoul.  Hus.  &  Wife,  §  86;  1  Bl.  4.  See  2  Bl.  Com.  497,  498;  1  Jarm. 
Com.  442-445;    2  Kent  Com.  130-143.  Wills,  32;   supra,  pt.   1.     This  makes 

3.  Schoul.    Hus.    &    Wife,    §§    405-  a   married   woman   utterly    incapable 

53 


§    46  LAW    OF    WILLS.  [pAKT    II. 

A  married  woman,  therefore,  could  not  make  a  valid  will.  Her 
incapacity  in  this  respect  was  not  founded  in  contempt  of  her  dis- 
cretion; nor,  save,  perhaps,  for  the  subtle  marital  influence  which 
husbands  of  strong  character  are  known  to  exert,  in  any  legal 
denial  of  a  capacity  to  exercise  free  will ;  but  rather  because  of 
those  disabilities  of  coverture  which  general  policy  imposed  and 
in  order  that  the  husband's  marital  control  of  her  property  and 
right  of  succession  might  be  preserved  unimpaired.  As  maid  or 
widow,  any  woman  who  had  turned  her  majority  was  as  free  to 
dispose  of  property  by  a  testament  as  man  himself.^ 

§  46.  Marriage  a  Revocation. 

So,  too,  the  marriage  of  a  feme  sole  was  treated  by  the  common 
law  as  so  entirely  changing  her  condition  in  life  and  relations  as 
t(v  work  ipso  facto  a  revocation  of  any  will  she  might  have  executed 
v/hile  single.®  And  such,  too,  was  the  efl:ect,  even  where  she  sur- 
vived her  husband  and  was  thus  restored  to  the  condition  of  single 
woman ;  for  his  death  did  not  revive  such  a  will.^  But  marriage 
had  no  such  summary  operation  upon  a  man's  will ;  as  his  right 
to  hold  property  and  dispose  of  it  by  testament  was  not  seriously 
impaired  by  his  nuptials,  neither  did  those  nuptials  revoke  the 
will  he  had  previously  made.* 

of   devising   lands,   under   an   English  fers  materially  from  that  of  infancy, 

statute     which     continued     in     force  idiocy,  or  lunacy.     It  does  not  arise 

when     the    American    colonies    were  from    natural    infirmity,    but    is    the 

planted.     But  cf.  Wagner  v.  Ellis,  7  creature    of    civil    policy."      It    may 

I'enn.     St.      413,    which     lays    stress  consequently    be    dispensed    with    in 

rather    ui>on    the    undoubted    circum-  various    instances;    unlike    the    other 

stance  that  of   the   wife's   lands    (ex-  disabilities  referred  to.     1  Jarm.   38. 

cept  for  curtesy)  a  surviving  husband  6.  4   Co.   Rep.   60,   61;    Hodsden   v. 

had    in   general   no   legal   disposition,  Lloyd,  2   Bro.  C.  C.  534. 

since  they  descended  to  her  heirs.  7.  Cotter  v.  Layer,  2  P.  Wms.  623; 

A   wife's   disqualification   to   devise  Garrett    v.    Dabney,    27    Miss.    335; 

existed  at  common   law   prior   to  the  Kurtz   v.    Saylor,    20   Penn.    St.    205. 

statute  of   34   &  35   Plen.   VIII.  c.   5,  And  see  Willock  v.  Noblo,  L.  R.  7  H. 

which   wa.s  explanatory  of  statute  32  L.   580,   597. 

Hen.  VriT.  0.  1.  8.  Schoul.    Hus.    &,    Wife,    §§    442, 

5.  " 'I'lic  disability  of  coverture  dif-  457.     Tliis  subject  of  revocation  by  a 

54 


CHAP.    111.]  INCAPACITY    OF    MARRIED    WOMEN.  §    43 

§  47.  Modern  Changes  effected  by  Courts  and  Legislation  as  to 
Wife's  Incapacity. 

Maxims  of  equity,  together  with  the  married  women's  legisla- 
tion of  the  last  half  century,  have,  however,  as  we  shall  show  in 
the  course  of  this  chapter,  made  immense  inroad  into  this  early 
doctrine  of  the  wife's  incapacity  for  testamentary  disposition ;  so 
that  we  find  the  female  spouse,  in  these  days,  not  only  permitted 
to  make  a  will,  with  considerable  freedom,  but  relieved  almost 
wholly  of  the  old  disabilities  which  the  doetrine  of  coverture  im- 
posed upon  her.  Whether  for  better  or  worse,  the  inevitable  mod- 
ern tendency,  both  in  England  and  throughout  the  United  States, 
is  from  conjugal  subjection  to  conjugal  independence  and  the 
equality  of  the  sexes,  so  far  at  least  as  the  marriage  relation  is 
left  to  depend  upon  human  institutions.* 

§  48.  Exceptions  to  Incapacity;  Wife  may  bequeath  with  Hus- 
band's Assent. 

First  of  all,  various  exceptions  have  been  engrafted  upon  the 
wife's  incapacity  to  make  a  will.  Thus  by  the  English  law  the 
wife  may  make  a  valid  will  of  personal  property,  with  the  consent 
of  her  husband.  But  this  is  upon  the  condition  that  he  survives 
her,  and  does  not  elect,  after  her  death,  to  disaffirm  his  consent 
already  given.  The  will  of  a  married  woman,  when  presented  for 
probate,  is  treated  on  the  face  of  it  as  a  mere  nullity.^  But  where 
it  is  alleged  to  have  been  made  with  the  assent  of  the  husband,  the 
court  assumes  jurisdiction.  Hence  the  wife's  right  in  such  cases 
is  founded  upon  the  husband's  gift  or  permission,  or,  as  it  is  said, 
the  waiver  of  his  own  right  to  administer  for  his  own  benefit.^ 

subsequent    marriage    with    regard   to  1.  Tucker    v.    Inman,    4    M.    &    G. 

either     spouse     is    treated     more     at  1076;    Fane,  Ex  parte,  16  Sim.   406; 

length  in  §§  424-426.     Modern  statu-  1  Wms.  Exrs.  53. 

tor}'    changes   in    the    rule    are    there  2.  1  Redf.  Wills,  23.  25;  Stevens  v. 

pointed  out.  Bagwell,   15  Ves.   156;    1   Wms.  Exrs. 

9.  See  on  the  general  subject  55;  Smith,  Goods  of,  1  Sw.  &  Tr.  127. 
Schoul.  Hus.  &  Wife,  §§  7,  184-188. 

55 


§    48  I-A.W    OF    WILLS.  [part    II. 

And  if  the  husband  dies  before  his  wife,  her  will  is  void  so  far 
as  it  could  have  derived  any  validity  from  his  consent,  and  fails 
to  operate  against  her  next  of  kin.^ 

This  exception  of  a  husband's  assent  is  one  which  chancery  and 
probate  courts  have  asserted,  without  seeking  the  aid  of  any  favor- 
able legislation  on  this  point.  And  the  "  license  "  in  question 
(to  borrow  Blackstone's  term  *)  is  so  nearly  a  gift  of  his  own 
property  that  in  order  to  give  it  effect  the  husband  must  have  as- 
sented to  the  particular  will  which  the  wife  has  made.  His  gen- 
eral assent  that  she  may  make  a  will  is  not  deemed  sufficient.^ 
jSTor  can  he  be  said  to  give  his  assent  while  ignorant  of  the  con- 
tents of  the  will,  and  unable  to  ascertain  them.^  And  the  time 
when  this  assent  on  his  part  shall  make  the  particular  will  effectual 
or  be  withheld  so  as  to  defeat  it  is  taken  to  be,  not  while  the  wife 
was  living  but  after  her  death,  and  in  fact  when  the  will  is  offered 
for  probate  and  the  self-sacrifice  on  his  part  would  be  unequivocal. 
He  may  therefore  revoke  an  assent  given  by  him  to  the  wife  her- 
self at  any  time  while  coverture  lasts  or  after  her  death  before 
probated 

But  the  assent  thus  requisite  on  the  husband's  part  may  be  in- 
ferred from  circumstances  subsequent  to  the  coverture.  And  if 
after  his  wife's  decease  he  acts  upon  the  will  or  once  agrees  to  it, 
he  is  not  considered  at  liberty  to  retract  his  assent  afterwards,. 
and  oppose  the  probate.^  Such  acts  even,  as  expressing  gratifica- 
tion of  his  wife's  selection  of  an  executor,  or  recommending  him 

3.  lb.  And  see  Willock  v.  Noble,  Mod.  211;  Swinb,  pt.  2,  §  9;  Scboul. 
L.  R.  7  H.  L.  580,  597,  wbicb  inti-  Hus.  &  Wife,  §  458;  1  Wms.  Exrs. 
mates  that  though   the   husband   had      54. 

given    Home    informal    assent    to    the  8.  Brook   v.    Turner,    2    Mod.    170; 

will,   hi.s  decease  before  the  wife  de-  Maas  v.  ShelTield,  10  Jur.  417;  1  Rob. 

privcs  such  assent  of  its  force.  Ecc.  364;    1   Wms.  Exrs.   54.     Where 

4.  2  Bl.  Com.  498.  the   husband    is    named   the   executor 

5.  Rex  V.  Bettesworth,  2  Stra.  891;  and  he  proves  the  will  generally,  his 
1   Wms.   Exrs.   54.  assent    will    be    inferred.      Fane.    Eof 

6.  Willock  V.  Noble,  L.  K.  7  II.  L.  parte,  16  Sim.  406.  And  see  (1901) 
580.  1  Ch.  24. 

7.  Brook   V.  Turner,  2  Mod.  170;    1 

56  .      -   - 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN.  §    49 

to  particular  places  to  procure  suitable  preparations  for  the  burial, 
may  constitute  a  conclusive  presumption  of  assent  after  the  wife's 
death;  at  least,  if  the  executor  has  been  thereby  induced  to  act 
under  the  instrument.^  So,  too,  it  has  been  decided  that  the  hus- 
band cannot  withdraw  his  assent  before  probate,  after  giving  the 
sole  legatee  a  written  memorandum  containing  his  sanction  of  the 
will.^  And  according  to  the  older  books,  "  a  little  proof "  will 
suffice  to  make  out  the  continuance  of  the  husband's  assent  after- 
the  wife's  death  where  she  made  the  will  in  pursuance  of  an  ex- 
press agreement  or  assent  on  his  part.^  In  general  the  probate 
of  a  will  is  conclusive,  both  of  the  capacity  of  the  testator,  being  a 
feme  covert,  to  make  the  will,  and  of  the  husband's  consent. 

§  49.  The  Same  Subject;  American  Rule. 

The  rule  is  general  in  this  country  that  the  husband  may  allow 
his  wife  to  make  a  valid  will  of  her  personal  estate,  though  not  of 
her  lands,^  and  that  his  assent  cannot  be  revoked  after  due  pro- 
bate of  the  will.'*  And,  as  in  English  law,  such  a  will  may  operate,, 
by  way  of  gift  from  the  husband,  so  as  to  deprive  him  of  the  right 
to  administer  on  the  wife's  estate  for  his  own  benefit,  so  as  to  vest 
her  personal  property  of  the  corporeal  or  incorporeal  sort  in  others,, 
which  otherwise  would  have  been  his  owu,  or  so  as  to  enable  some 

9.  1  Rfdf.   Wills,  24;    1  Mod.  211;  §  45)    that  the  husband's  assent  may 

2  Mod.  170.  give  validity  to  his  wife's  testament 

1.  Maas  V.  Sheffield,  10  Jur.  417;  of  land  when  he  is  her  sole  heir 
1  Rob.  Ecc.  364.  thereto  under  the  statute  of  descents.. 

2.  Brook  V.  Turner,  2  Mod.  173,  Wagner  v.  Ellis,  7  Penn.  St.  413.  47 
where  the  old  law  is  stated  at  length;  Am.  Dec.  515. 

1   Wms.   Exrs.    54.   And   see  Maas  v.  4.  Cutter   v.   Butler,    5    Fost.    343; 

Sheffield,    supra,    where   husband    had  Fisher     v.     Kimball,     17     Vt.     323; 

witnessed  his  wife's  will  when  it  was  Emery   v.    Neighbor,     2    Halst.     142; 

executed.  George  v.  Bussing,   15  B.  Mon.   558; 

3.  Local  statutes,  that  for  instance  Wagner   v.    Ellis,    7    Penn.    St.    413 ; 
of   Massachusetts,    will   be    found    to  47  x'^m.  Dec.  515;   Lee  v.  Bennett,  31 
vary    this    exception    of    lands.      See  Miss.    119;     Newlin    v.    Freeman.    1 
post,    §    57.      So,    too,    it    is    held    in  Ired.    Law,    514,    76    S.    W^    542,    25. 
Pennsylvania    (but  without   reference  Ky.  Law,  869. 

to  the  statute  of  Henry  VIII.,  supra, 

57 


§    50  LAW    OF    WILLS.  [pART    11. 

other  person  to  settle  the  estate  as  her  executor.  The  husband's 
general  assent  to  make  a  will  does  not  suffice,  but  must  attach  to 
tlie  particular  testamentary  disposition  which  she  may  have  made.^ 
This  assent  of  the  husband,  it  is  likewise  said,  should  be  given 
at  the  time  the  will  is  proved ;  ®  and  there  is  authority  for  the  as- 
sertion that  the  husband  may  withdraw  his  assent  at  any  time  be- 
fore probate.^  But  circumstances  may  establish  the  surviving  hus- 
band's assent  at  some  earlier  date.^  The  will  should  be  presented 
for  probate;  and  the  decree  of  the  probate  court  establishing  the 
will  of  the  married  woman  concludes  its  validity  and  her  right  to 
make  it.' 

Where  local  legislation  provides  an  effectual  assent  to  the  wife's 
will  in  some  other  mode,  as  by  the  husband's  writing,  or  imposes 
some  other  variation  of  the  doctrine  above  stated,  exceptions  of 
judicial  statement  of  course  occur.^  This  coverture  doctrine  of  a 
Avill  by  the  wife  with  her  husband's  license  or  assent  is  now  dis- 
pensed with,  wholly  or  partially,  in  the  codes  of  various  States, 
as  we  shall  see  presently.^ 

§  50.  Wife's  Disposition  as  Executrix. 

Another  class  of  co-called  exceptions  to  the  wife's  incapacity 

5.  Kurtz  V.  Saylor,  20  Penn.  St.  the  property  the  wife's  separate 
205;  George  v.  Bussing,  15  B.  Men.  property  during  marriage,  the  better 
558;   Cutter  v.  Butler,  25  N.  H.  357.  opinion  defers  the  time  of  assent  until 

6.  lb.  the    wife    dies,    leaving    her    husband 

7.  See  Wagner,  Estate  of,  2  Ashm.  surviving. 

448;  Van  Winkle  v.  Schoonmaker,  15  9.  Parker  v.  Parker,  11  Cush.  519; 

N.  J.  Ch.  384.     Cf.  Cutter  v.  Butler,  Ward   v.  Glenn,  9  Rich.   127;    Ciitter 

25  N.  H.  357.  v.  Butler,  25  N.  H.  357,  57  Am.  Dec. 

8.  Cutter  v.  Butler,  supra;  Wag-  330;  Lee  v.  Bennett,  31  Miss.  119. 
ner  v.  Ellis,  7  Penn.  St.  413;  4  7  Am.  1.  The  Massachusetts  statute  being 
Dec.  515;  Grimke  v.  Grimke,  1  Do-  peculiar  as  to  the  husband's  assent, 
Bans.  3G6;  2  ib.  66.  In  these  South  the  decisions  of  tliat  State  are  not 
Carolina  cases  the  fact  that  the  hus-  here  pertinent.  Sniitii  v.  Sweet,  1 
band  wrote  out  the  will  appears  to  Cush.  470;  Silsljy  v.  liiillock,  10 
have  boon  taken  as  strong  proof  of  Allen,  94;  Burroughs  v.  Nutting, 
an   assent   f»n    his   part.       But   where  105   Mass.   228. 

tli'-re    was    no    contract    which     m;ide  2.   Post,  §  56. 

58 


CHAP.    Ill,]  INCAPACITY    OF    MARRIED    WOMEN".  §    51 

exists,  when  she  takes  property  in  the  character  of  executrix  and 
her  will  is  confined  to  what  she  takes  in  that  character;  in  which 
case  she  may  make  a  will  without  her  husband's  assent,  and  the 
ecclesiastical  or  corresponding  court  assumes  jurisdiction.^  But 
if  the  wife  had  before  marriage  reduced  to  possession  personal 
chattels,  to  which  she  was  entitled  as  executrix  and  residuary 
legatee,  or  in  some  other  way  the  husband's  full  ownership  had 
attached,  the  wife  cannot  dispose  of  them  by  will.* 

Since  this  exception  does  not  concern  property  to  which  the 
wife  takes  a  beneficial  title,  it  can  hardly  be  called  an  exception 
at  all.  For  the  effect  of  such  an  instrument  is  merely  to  pass,  by 
a  pure  right  of  representation,  to  the  testator  or  prior  owner,  such 
of  his  personal  assets  as  remain  outstanding.^  The  married  woman, 
in  other  words,  has  as  executrix  power  to  make  a  will  and  to  ap- 
point an  executor  for  the  purpose  of  continuing  the  representation 
to  the  original  testator.^ 

§  51.  Wife's  Will  of  Separate  Property;  English  Rule. 

A  third  class  of  exceptions,  recognized  in  England,  is  where 
property  is  given  or  settled,  or  is  agreed  to  be  given  or  settled,  to 
the  wife's  separate  use.  In  such  a  case,  and  with  reference  more 
especially  to  things  personal,  the  wife  has  long  been  permitted  to 
dispose  of  such  property  to  the  full  extent  of  her  interest,  although 
no  particular  form  be  prescribed  in  the  instrument  creating  the 
trust.  This  follows  as  an  incident  to  the  right  of  beneficial  en- 
joyment ;  it  makes  her  right  of  disposition  complete.''  "  I  have 
always  taken  this  ground,"  said  Lord  Thurlow  in  1789  of  this 
class  of  cases,  "  that  personal  property,  the  moment  it  can  be  en- 
joyed, must  be  enjoyed  with  all  its  incidents."  *     And  it  may  be 

3.  Tucker  v.  Inman,  4  M.  &  G.  6.  Willock  v.  Noble,  L.  R.  7  H.  L. 
1076.  580,  590,  per  Lord   Chancellor  Cairns. 

4.  Scammell  v.  Wilkinson,  2  East.  7.  Fettiplace  v.  Gorges,  1  Ves.  Jr. 
553;  Cutter  v.  Butler,  25  N.  H.  353,  46;  s.  c,  3  Bro.  C.  C.  8;  Lord  Eldon 
57   Am.   Dec.   330.  in   Rich    v.    Cockell,   9   Ves.   375;     1 

5.  Hodsden  v.  Lloyd,  2  Bro.   C.  C.  Wms.   Exrs.   61. 

534;   1  Wms.  Exrs.  54;   Schoul.  Hus.  8.  Fettiplace  v.  Gorges,  1  Ves.  Jr. 

&  Wife,   §§   163,  460.  46;   s.  c,  3  Bro.  C.  C.  8. 

59 


51 


LAW    OF    WILLS. 


[part  II. 


affirmed,  as  a  general  principle,  that  personal  property  which  has 
been  acqnired  by  a  married  woman  under  such  circumstances  that 
it  became  her  separate  estate  may,  independently  of  legislation 
which  regulates  the  subject  differently,  or  of  express  restraints, 
be  dealt  with  by  her  as  if  she  were  a  single  woman.^ 

There  is  no  reason  for  distinguishing  between  real  and  personal 
estate  settled  to  the  wife's  separate  use,  save  so  far  as  the  old 
statutes  of  disability  to  devise  may  be  found  to  operate  against 
married  women.  But  the  English  cases  for  some  time  manifested 
a  doubt  on  this  point,  and  the  testamentary  jus  disponendi  was 
thought  not  so  clear  in  the  case  of  separate  real  estate  as  of  sep- 
arate personalty.  But  since  the  separate  use  originated  as  the 
creature  of  equity,  English  chancery  courts  appear  to  have  con- 
cluded to  embrace  under  its  protection  separate  property  of  either 
class."^  And  the  rule  of  English  chancery  is  now  well  settled  that 
a  married  woman  may  pass  her  separate  real  estate  by  will  as  a 
feme  sole,  not  less  than  her  personal  property.^ 


9.  Haddon  v.  Fladgate,  1  Sw.  & 
Tr.  48;  Smith,  Goods  of,  ib.  125; 
Crofts,  Goods  of,  L.  R.  2  P.  &  D.  18. 

As  to  what  shall  constitute  the 
wife's  separate  property,  so  as  to  be 
held  subject  to  this  mode  of  disposi- 
tion, see  Schoul.  Hus.  &  Wife,  Part 
V,   cs.    1-5. 

The  English  practice  is  to  grant 
a  limited  probate  of  the  wife's  will 
so  as  to  operate  upon  the  separate 
property  disposed  of.  See  Crofts, 
Goods  of,  L.  R.  2  P.  &  D.  18. 

1.  In  Taylor  v.  Meads,  the  wife 
had  lands  conveyed  in  trust  to  lior 
separate  use,  with  a  power  given  her 
to  appoint  it  by  any  instrument  in 
writing  "  to  be  bv  her  signed,  sealed 
and  delivered"  after  a  certain  man- 
ner; the  formalities  required  being 
greater  than  the  Statute  of  Wills  re- 


quired for  testamentary  dispositions. 
The  property  was  limited  over  to 
others  in  default  of  such  appoint- 
ment. She  made  an  instrument  in 
writing,  which  conformed  to  the 
Statute  of  Wills,  but  which,  not 
being  under  seal,  was  not  in  accord- 
ance with  the  power  given  her.  It 
was  decided  that  the  instrument  was 
defective  as  the  execution  of  a  power 
of  appointment;  but  that  it  was  a 
valid  devise,  such  as  she  had  the 
right  to  make,  of  estate  settled  to 
her  sole  and  separate  use.  4  De  G.  J. 
&.  S.  597;  contra,  Buckell  v.  Bkn- 
tliorne.   5   Hare,   131. 

2.  See  Hall  v.  Waterhouse,  5  GifT. 
G4;  Pride  v.  Bubb,  L.  R.  7  Ch.  04. 
Such  a  will  defeats  tiie  liushaiid's 
equitable  right  to  curtesy.  Cooper  v. 
Macdonald,   7  Ch.  D.   288. 


60 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN.  §    52 

§  52.  The  Same  Subject. 

In  thus  recognizing  the  right  of  a  wife  to  dispose  by  testa- 
mentary instrument  of  her  separate  property  chancery  assumes 
that  neither  legislation  on  the  subject  of  wills,  nor  a  special  re- 
straint contained  in  the  instrument  which  settles  the  property  to 
her  separate  use,  obstructs  the  wife's  free  disposition  by  testament. 
Such  legislation  or  such  a  restraint,  if  it  exist,  must  operate ;  and 
hence  the  clause  "  against  anticipation,"  so-called,  which  in  Eng- 
lish settlements  of  this  kind  has  often  been  used  to  tie  up  the 
wife's  hands  and  prevent  her  from  alienating  or  incumbering  the 
separate  property  during  coverture,  excludes  her  right  as  a  married 
woman  to  alienate  it  by  will.^ 

On  the  other  hand,  as  this  doctrine  of  a  separate  use  extends  to 
settlements  antenuptial  or  (if  founded  upon  a  consideration)  post- 
nuptial, we  may  conclude  that  the  will  of  a  married  woman  may 
operate  as  to  property  thus  settled  upon  her  without  restriction, 
as  incidental  to  her  right  of  alienating  and  disposing  of  it,  and 
without  any  express  clause  empowering  her.*  And  the  will  per- 
mitting her  testamentary  disposition  of  her  separate  property  pre- 
vails, whether  such  property  be  in  possession  or  reversion,  whether 
vested  in  present  interest  or  in  expectancy.*  And  where  she  may 
thus  dispose  of  the  principal  of  the  fund  she  is  presumed  capable 
of  disposing  of  income,  savings  and  accretions  as  well.^  Xor  is  it 
essential  that  the  property  came  to  her  separate  use  without  the 
intervention  of  trustees;  for  it  is  a  well-known  iiile  that  equity 
will  treat  the  husband  himself  as  trustee  rather  than  suffer  the 

3.  See  Schoul.  Hus.  &  Wife,  §  202,  353;  1  Wms.  Exrs.  61,  62;  1  Jarm. 
as  to  the  clause  of  "restraint  upon  Wills,  40.  As  to  the  wife's  will  of 
anticipation"  to  be  found  in  settle-  property  in  which  she  has  an  ex- 
ments  to  the  wife's  separate  use.  pectant  interest,  but  that  interest 
Troutbeck  v.  Boughey,  L.  R.  2  Eq.  does  not  actually  vest  in  her  until 
534,  bears  in   this  direction.  after   her  husband's   death,   see   Wil- 

4.  1  Jarm.  Wills,  39.     And  see  as  lock  v.  Xoble,  L.  R.  7  H.  L.  580. 

to   such   settlements,   Schoul.   Hus.   &  6.  Prec.    Gh.    44;    1    Eq.    Ca.    Abr. 

Wife,   Part   VII.  66,    68;    Brooke  v.   Brooke,   25   Beav. 

5.  Bishop  V.  Wall,  3  Ch.  D.  394;  342;  Darkin  v.  Darkin,  17  Beav.  578. 
Lechmere    v.     Brotheridge,    32   Beav. 

61 


§    53  LAW    OF    WILLS.  [PAET    II. 

wife's  beneficial  enjoyment  of  her  separate  property  to  fail.^  Sep- 
arate earnings  and  the  profits  and  stock  in  trade  of  a  separate 
business  carried  on  by  the  wife  may  carry  all  the  incidents  of 
separate  property.^ 

A  husband's  declaration  of  trust  in  favor  of  his  wife  for  her 
separate  use  may  be  either  express  or  implied.^  Moreover,  the 
wife's  will  of  separate  property  being  a  good  one  during  coverture, 
tlie  will  continues  good  when  coverture  ends,  whether  wife  or  hus- 
band be  the  sui'\avor.-^ 

§  53.  The  Same  Subject:    Where  Spouses  live  apart. 

So  far  extends  our  doctrine  of  a  separate  use  involving  a  sep- 
arate right  of  disposition,  that  covenants  under  a  separation  deed 
for  the  wife's  benefit  are  now  upheld  sls  not  obnoxious  to  sound 
policy.  Whatever  the  wife  acquires  and  holds  for  her  sole  and 
exclusive  use  and  enjoyment  under  such  a  deed  may  accordingly 
pass  by  her  will  as  though  she  had  no  husband.^  More  generally^ 
the  savings  of  money  which  a  husband  transmits  from  time  to  time 
to  his  wife  from  whom  he  lives  separate,  for  her  maintenance  and 
support,  have  in  equity  all  the  incidents  of  separate  estate.^  The 
wife's  earnings,  too,  while  abandoned  by  her  husband  usually  fol- 
low the  same  principle,  the  subject  being  expressly  regulated  in 
great  measure  by  legislation.'* 

7.  Tappenden  v.  Walsh,  1  Phillim.  472;  s.  c,  25  Bcav.  342;  Schoul. 
352;  1  Wms.  Exrs.  62;  1  Jarm.  Hus.  &  Wife,  §  485;  Tharp,  Re,  3  P. 
Wills,    40;     Hall    v.    Waterhouse,    5      D.   76. 

Oiff.    64,   which   supported   the   wife's  4.  See  Haddon  v.   Fladgate,   1   Sw. 

devise   of   land   on    such   a    principle.  &  Tr.   48,  where  a  verbal  separation 

And  see  Schoul.  Hus.  &  Wife,  §  191.  had    taken    place,    and     the     spouses 

8.  Ashworth  v.  Outram,  5  Ch.  D.  never  afterwards  cohabited.  See  also 
923;    Haddon    v.    Fladgate,    1    Sw.   &  Schoul.  Hus.  &  Wife,  §  486. 

Tr.    125.  The     English     divorce     act,     1857,. 

9.  Baddeley  v.  Baddeley,  9  Ch.  D.  recognizes  the  will  of  a  married 
113;  Schoul.  Hus.  &  Wife,  §§  291-  woman  as  to  property  acquired  by 
320.  licr  after    a    protective  order.     This 

1.  I'.iHliop   V.   Wall,   3   Ch.   D.   194.        order   issues   on   the   ground    of    her 

2.  I'ridr'  V.  iJiiIil),  L.  R.   7  Ch.  64.        liusband's  desertion.    Worman,  Goods 


3.   Urookc   V.   Brooke,   4   Jur.  N.  S. 


62 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN.  §    54 

The  wife's  capacity  as  in  effect  that  of  a  single  woman  becomes 
thus  extended  from  the  old  hypothesis  of  the  husband's  civil  death. 
Wherever  her  husband  is  dead  at  the  law,  a  married  woman  may 
make  a  will.  As  where  he  has  been  banished  for  life ;  ^  or  is  trans- 
ported for  life ;  ®  or  is  an  alien  enemy.^  For  in  such  cases  the 
wife  is  no  longer  regarded  as  under  the  disabilities  of  coverture. 
And  some  have  thought  that  while  a  husband's  marital  rights  are 
suspended,  as  by  his  temporary  banishment,  his  wife  ought  to  be 
able  to  make  a  valid  will  of  property  acquired  by  her  in  the  mean- 
time.^ But  a  judgment  which  empowers  a  married  woman  speci- 
ally gives  validity  only  to  her  future  acts.^ 

§  54.  Wife's  Will   of   Equitable   Separate   Property;   American 
Rule. 

The  American  rule  follows  the  English,  as  to  the  wife's  power 
to  dispose  of  her  equitable  separate  property,  wherever  American 
courts  have  assumed  full  jurisdiction  of  the  "  separate  use  "  as 
the  creature  of  equity.  Hence  it  is  ruled  in  several  of  the  United 
States  that  the  wife's  will  of  property  settled  to  her  separate  use 
may  operate ;  and  that  a  married  woman,  when  not  restrained  from 
alienation,  may,  as  an  incident  to  her  separate  estate,  and  without 
any  express  power,  dispose  of  it  by  instrument  inter  vivos  or  will.'"' 
But  the  doctrine  is  by  no  means  so  universally  nor  so  boldly  sus- 

of,   1   Sw.  &   Tr.   513;    1  Wms.  Exrs.       don,  see  Martin,  Re,  2  Roberts,  405; 
60.  Coward,  Re,  4  Sw.  &  Tr.  46;  1  Jarm. 

5.  Portland    v.    Prodgers,    2    Vern.       Wills,   40   and  note. 

104;    Compton    v.    Collinson,    2     Bro.  9.  Gregory  v    Gates,    92   Ky.    532. 

C.  C.  377;    1  Wms.  Exrs.  63.  1.  2  Kent  Com.  170,  171;   Porcher 

6.  Newsome  v.  Bowyer.  3  P.  Wms.  v.  Daniel,  13  Rich.  349;  Buchanan 
37;  Martin,  G<X)ds  of,  15  Jur.  686;  v.  Turner,  26  Md.  1;  Cutter  v.  But- 
Atlee  V.  Hook,  23  L.  J.  Ch.  776.  ler,  25  N.  H.  343;   Burton  v.  HoUey, 

7.  1   Salk.   116.  18   Ala.   408;    Bradish     v.     Gibbs,     3 

8.  Franks,  Ex  parte,  1  Moore  &  Johns.  Ch.  523;  Holman  v.  Perry,  4 
So.  11.  But  see  Coombs  v.  Queen's  Met.  492.  And  see  as  to  the  binding 
Proctor,  2  Roberts,  547.  For  appli-  force  of  a  defective  settlement  to  th& 
cation  of  this  doctrine  to  the  ease  of  wife's  separate  use  upon  which  the 
a  felon  convict  transported  for  life,  parties  have  acted  during  coverture, 
notwithstanding   his   conditional   par-  Emery  v.  Neighbor,  2  Halst.  142. 

G3 


§    55  LAW    OF    WILLS.  [pART    II. 

tained  hj  our  cliancery  courts  as  in  those  of  England ;  and  inas- 
much as  "  separate  property  "  is  of  statutory  rather  than  equitable 
origin  from  our  American  point  of  view,^  and  local  statutes  in 
point  are  constantly  found  touching  the  wife's  will  and  her  testa- 
mentary capacity,  we  may  defer  the  discussion  for  a  moment. 

§  55.  Modern  English  Statutes  of  Wills. 

Married  women,  we  have  seen,  were  expressly  excepted  from 
the  Statute  of  Wills,  34  and  35  Henry  VIII.  c.  5,  though  no  new 
disability  was  thereby  created,  since  they  had  been  regarded  as 
incapable  at  a  much  earlier  date.^  The  present  English  Statute 
of  Wills,  1  Vict.  c.  26,  §  8,  provides  that  "  no  will  made  by  any 
'married  woman  shall  be  valid,  except  such  as  might  have  been 
made  by  a  married  woman  before  the  passing  of  this  act."  "*  But 
the  exceptions  have  so  multiplied  upon  the  prohibition  of  late  as 
to  constitute  of  themselves  a  permissive  rule,  i^evertheless,  it  is 
laid  down  that  the  classes  of  exceptions  remain  essentially  as  be- 
fore :  namely,  those  of  wills  with  the  husband's  assent,  of  disposi- 
tions as  executrix  and  in  another's  right,  and  of  separate  property; 
to  which  might  be  added  that  anomalous  class  of  wills  in  execution 
of  a  power,  of  which  we  shall  presently  speak.^  It  is  the  encroach- 
ing disposition  of  modern  times  to  deal  with  the  wife's  property 
as  her  separate  instead  of  general  property  (encouraged  still  far- 
ther by  the  Married  Women's  Property  Acts  of  1870  and  1882), 
carrying  inevitably  with  it  the  fuller  recognition  of  her  testament- 
ary alienation  as  an  incident  of  the  jiis  disponendi  in  such  prop- 
erty, which  more  than  anything  else  wears  down  by  undermining 
the  old  doctrine  of  a  wife's  incapacity  to  make  a  will  in  that 
country.® 

2.  Sclioul.    TIus.    &    Wife,     §§     183,  men's    acts,  probate  is  now  granted    in 
204.  England   to   the   will   of     a     married 

3.  yupra,  §  45.  woman    in   the   ordinary   form,   with- 

4.  1    Wms.    Exrs.    preface;    appx.  out      any      exception     or     limitation. 

5.  Wiilor-k  V.  Noble,  L.  R.  7  H.  L.  Smart  v.  Tranter,  40  Ch.  D.  165;   11 
580,  pfr  Ixnl  (  li:irifeilor  Cairns.  P.  D.   169;    12  P.  D.   137.    See  Sm;irt 

6.  Under    tin;    latest    married   wo-  v.    Tranter,    ib.    as   to   the   procedure 

64 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN.  §    .56 

§  56.  Wife's  Will  under  Late  American  Statutes. 

ISTow  to  recur  to  the  subject  as  the  law  stands  to-daj  in  the 
United  States.  In  this  country  the  great  revolution  which  legisla- 
tion has  effected  in  the  property  rights  of  married  women  leaves 
its  traces  upon  their  testamentary  privileges.  Local  statutes,  not 
those  alone  which  recognize  or  create  a  separate  property  in  the 
wife,  or  turn  her  whole  general  property  into  separate  property, 
but  those  relating  explicitly  to  the  wills  of  married  women,  are 
to  be  found  in  perhaps  every  State  in  this  Union ;  and  to  keep 
pace  with  public  policy,  one  must  study  the  latest  local  enactments 
on  this  subject.^  Many  of  these  codes  may  be  said  to  give  the 
wife  a  right  to  dispose  of  her  general  property  by  will ;  but  few 
in  truth  have  received  much  judicial  exposition,  or,  indeed,  any 
at  all.  On  the  whole,  the  principles  thus  stated  or  indicated,  as 
embodying  what  we  may  call  an  American  policy,  though  not  uni- 
formly expressed  in  clear  and  unambiguous  language,  are  that  the 
wife,  if  of  full  age  and  sound  mind,  may  devise  or  bequeath,  by 
her  sole  will,  whatever  separate  property,  at  least,  the  statutes  se- 
cure to  her;  and  that  such  will  shall  be  valid  without  the  joinder 
or  assent  of  her  husband.^  But  power  to  cut  off  her  husband  by 
her  sole  will  is  restricted  in  some  States.*     The  latest  legislation 

now    required   where   a   husband   dis-  vail)    whether   the   legislature   meant 

putes   the   capacity    of    his    wife    to  that  the   wife   could   dispose    of    her 

make  a  will.  lands,  but  not  of  her  chattels.    Other 

7.  See  Schoul.  Hus.  &  Wife,  appen-  differences  will  be  observed  by 
dix;  citation  of  Codes,  in  1  Jarm.  minute  comparison  of  these  codes. 
Wills,   38,   Bigelow's  note;    Stimson's  See  36  S.  C.  428. 

Am.    Stat.    Law,    §    6460;     Wing    v.  9.  In  Massachusetts   it  is  provided 

Deans,  102  N.  E.  313,  214  Mass.  546.  that    the    wife     cannot     deprive     her 

8.  The  language  of  these  local  husband  of  more  than  one-half  her 
statutes  is  sometimes  restricted  to  personal  estate  without  his  consent 
the  wife's  "separate"  property;  in  in  writing.  A  statement  of  this  con- 
other  States  the  word  "separate "  is  sent  upon  the  instrument  appears 
not  employed.  Some  States  use  the  necessary.  Smith  v.  SAveet,  1  Cush. 
word  "  devise "  and  omit  the  word  470.  And  see  Tyler  v.  Wheeler,  160 
"bequeath,"  thus  suggesting  (though  Mass.  206,  35  N.  E.  666.  In  other 
so  strained  and  unnatural  an  inter-  States  the  restriction  applied  to  the 
pretation  would  not  be  likely  to  pre-  wills  of  either  spouse  is  a  correspond- 

5  65 


§    57  LAW    OF    WILLS.  [PAET    IL 

on  the  subject  (much  of  which  bears  date  in  the  several  States  not 
earlier  than  1873)  has  a  tendency  to  confer  independent  testa- 
inentary  powers  upon  the  wife  without  qualification  of  terms  as 
to  her  property  and  apart  from  her  husband's  concurrence ;  ^  and 
in  fact,  to  place  spouses  of  either  sex,  if  it  be  morally  possible, 
upon  the  same  equal  plane  of  holding  and  disposing  capacity. 

Property  which  was  not  really  the  wife's  in  her  own  right,  but 
the  husband's,  at  the  time  of  her  death,  cannot,  of  course,  be  the- 
subject  of  her  devise  or  bequest;  ^  nor  that  which  vests  at  once  in 
him  upon  her  death,  by  the  rule  of  survivorship.^  But  the  hus- 
band's joinder  or  other  expression  of  assent  should  make  his  wife's 
will  valid  and  conclusive  both  against  him  and  his  creditors.* 

§  57.  The  Same  Subject. 

In  some  States  the  capacity  of  married  women  to  execute  a  valid 
will  seems  t-o  have  been  conferred  by  implication ;  in  others  clearly 
and  expressly;  and  the  latest  enactments  usually  confer  the  capac- 
ity in  broad  and  positive  terms.  Much  latitude  is  afforded,  more- 
over, in  discussing  whether  the  legislature  meant  to  confer  testa- 
mentary capacity  as  to  property  of  the  wife  subject  to  the  hus- 
band's old  marital  rights,  or  regardless  of  them ;  and  this  involves 
the  further  inquiry,  what  is  taken  to  be  the  wife's  separate  prop- 
erty, how  greatly  local  legislation  may  have  enlarged  equity  rules 
in  this  respect,  and  whether,  in  a  word,  all  her  own  property  may 
not  at  length  have  been  placed  under  her  general  power  of  disposi- 
tion. Statutes  of  Vermont  giving  married  women  power  to  de- 
vise their  real  estate  by  last  will  and  testament  have  received  a 
liberal  interpretation  as  to  personalty,  because  equity  jurisdiction 

jng     on«.      Some     legislatures     have  131   Penn.   St.   220,   17  Am.   St.   Eep. 

maniffsted    special    hostility    to    the  898,  6  L.  R.  A.   353.  18  A.  1021. 

husband's    influence   over    his     wife's  2.  AIsop   v.   McArthur,   76   111.   20; 

disposition.  Vreeland  v.  Ryno,  20  N.  J.  Eq.   160. 

1.  See    Schull    v.    Murray,    32    ]\Id.  3.  Stroud    v.    Connelly,    33     Gratt. 

9;     Noble     V.     Enos,     19      Md.      72;  217. 

Stoutenburgh    v.    Hopkins,    45    N.    J.  4.  Ikals    v.    Storm,    23    N.    J.    Eq. 

Eq.   8'JO,    19  A.   622;    Knox's   Estate,  373;   McBride's  Estate,  81  Penn.  St.. 


303. 


CG 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN. 


§  57 


in  that  State  gave  a  liberal  scope  to  their  general  dominion  over 
separate  property.^  But  in  States  which  draw  the  doctrine  of 
separate  use  from  local  legislation  rather,  and  whose  legislation 
proceeds  with  reserve,  a  more  stringent  rule  of  interpretation  is 
enforced  on  a  husband's  behalf.® 

This  whole  difficult  subject  has  as  yet  received  but  little  atten- 
tion in  the  courts,  though  much  from  the  legislature.'  But  there 
are  already  some  decisions  sustaining  the  wife's  right  to  devise  or 
dispose  by  her  will,  duly  executed,  of  real  estate  held  to  her  sole 
and  separate  use;  ^  not  to  add,  of  her  general  lands,  as  well  as  of 
personal  property.  And  she  may  even,  in  certain  States,  cut  off 
her  husband's  right  of  curtesy  by  observing  the  statute  formalities 
of  execution ;  in  Massachusetts  and  other  States,  for  instance,  by  a 
will  executed  with  her  husband's  written  assent;^  in  Illinois,  if 
not  under  various  codes,  without  such  assent.-'     And  in  respect  to 


5.  See  Caldwell  v.  Renfrew,  33  Vt. 
213;   Holmes  v.  Holmes,  27  Vt.   765. 

6.  In  Compton  v.  Pierson,  28  N. 
J.  Eq.  229,  the  court  treated  the 
wife's  right  of  testamentary  disposi- 
tion as  matter  for  strict  construc- 
tion. And  see  Johnson  v.  Sharp,  4 
Cold.  45,  to  the  same  effect;  Hick- 
man V.  Brown,  88  Ky.  377. 

7.  In  Virginia,  Maryland,  and  the 
Southern  Atlantic  States  generally, 
as  well  as  Alabama,  the  doctrine  of 
the  wife's  testamentary  capacity 
seemed,  until  recently,  to  be  found- 
ed upon  the  earlier  English  cases. 
But  in  these  and  some  other  States 
which  borrow  largely  from  the  chan- 
cery jurisprudence  of  England,  per- 
haps the  wife  would  have  been  al- 
lowed to  devise  and  bequeath  prop- 
erty duly  settled  to  her  separate  use, 
or  to  execute  a  power  as  the  case 
might  be.  See  Burton  v.  Holley,  18 
Ala.  408;  Porcher  v.  Daniel,  13  Rich. 
369;  Michael  v.  Baker,    12    Md.    158. 


It  has  been  perceived  that  this  right 
of  testamentary  disposition,  as  inci- 
dental of  the  wife's  beneficial  enjoy- 
ment of  her  separate  property,  has 
been  but  gradually  conceded  in  Eng- 
land, and  that  the  beneficial  rule  was 
supposed  for  a  long  time  to  apply  to 
her  personal  estate  simply.  Huproy 
§  51.  See  98  Tenn.  535;  70  S.  W. 
610,  109  Tenn.  148;  Hughey  v.  War- 
ner,  140  S.  W.   1058,   124  Tenn.   725. 

8.  Albrecht  v.  Pell,  18  N.  Y.  Supr. 
127;   Emmert  v.  Hays.  89  111.   1. 

9.  Sanborn  v.  Batcuclder,  51  N.  H. 
426;  Silsby  v.  Bullock,  10  Allen,  94; 
McBride's  Estate,  81  Penn.  St.  393. 
Presumably,  under  such  statutes,  a 
wife  cannot  cut  off  her  husband's 
curtesy  without  his  consent,  where 
curtesy  is  still  a  recognized  legal  in- 
terest. 132  Penn.  St.  533.  See  Mid- 
dleton  V.  Steward,  27  N.  J.  Eq.  293. 

1.  Pool  V.  Blakie,  53  111.  495.  And 
see    Cavenaugh     v.    Ahrehbacker,    36 


67 


57 


LAW    OF    WILLS. 


[part   II. 


curtesy  and  bequests  in  lieu  thereof,  the  husband  may,  in  some 
States,  be  put  to  his  election,  as  the  widow  has  been  in  respect  of 
her  dower.^ 


Ga.  500,  91  Am.  Dec.  778;  Stewart 
V.    Ross,    50   Miss.    776. 

There  are  various  States  where, 
under  statutes  not  the  most  recent, 
the  wife's  will  of  property  settled  to 
her  separate  use  has  been  allowed  to 
operate  by  way  of  appointment. 
Buchanan  v.  Turner,  26  Md.  1 ;  Por- 
cher  V.  Daniel,  13  Rich.  349.  See 
§  64,  post.  And  of  course  her  will, 
made  by  permission  of  her  husband, 
where  the  same  is  duly  admitted  to 
probate,  supra,  §  49.  In  Kentucky, 
as  the  code  stood  some  years  ago, 
while  a  married  woman's  will  was  to 
be  restricted  in  operation  to  such 
estate  as  the  law  authorized  her  to 
dispose  of  by  will,  and  the  conclu- 
siveness of  a  probate  judgment  was 
regulated  accordingly,  there  was  a 
liberal  disposition  manifested  to 
treat  land  belonging  to  a  married 
woman  who  lived  apart  from  her 
husband  without  blame  on  her  part, 
as  so  far  her  separate  estate  that  she 
might  dispose  of  it  by  will.  Mitchell 
V.  Holder,  8  Bush,  362;  Hiram  v. 
Griffin,  8  Bush,  262.  See,  further, 
Deutsch  V.  Rohlfing,  126  P.  1123,  22 
Col.  App.  543;  Hankins  v.  Columbia 
Trust  Co.,  134  S.  VV.  498,  142  Ky. 
200  (enlarged  power  by  will  as  to 
the  wife'."*  general  estate,  under  latest 
legislation) . 

Independently  of  late  statutes  con- 
ferring an  express  capacity,  the  older 
States  agree  that  a  married  wuraan 
cannot  devise  lands  not  held  in  her 
Hole  riglit.  Osgood  v.  Breed,  12 
Ma.s8.    525;     Taber    v.    Packwood,     2 


Day,  63;  West  v.  West,  10  S.  &  R. 
446 ;  Marston  v.  Norton,  5  N.  H.  205 ; 
Newlin  v.  Freeman,  1  Ired.  Law,  514. 
But  the  Ohio  courts  many  years  ago 
decided  that  under  a  State  enact- 
ment, giving  "  every  male  person 
aged  twenty-one  years  or  upward, 
and  every  female  aged  eighteen 
years  or  upward "  the  power  to  de- 
vise property,  a  married  woman 
could  make  a  valid  will  to  pass  her 
real  estate.  Allen  v.  Little,  5 
Ohio,  65.  This  was  the  case  of  a 
married  woman  living  apart  from 
her  husband.  In  New  York  a  married 
woman  might  formerly  make  a  valid 
will  under  the  written  authority  of 
her  husband;  but  the  right  was  after- 
wards taken  away.  Then,  under  a 
law  of  1849,  a  married  woman  might 
devise  real  and  personal  property, 
and  by  a  later  enactment  the  right  to 
make  a  will  was  expressly  given  her 
in  liberal  terms.  Moehring  v.  Thayer, 
1  Barb.  Ch.  264;  Wadhaus  v.  Am. 
Home  Missionary  Society,  12  N.  Y. 
415;  White  v.  Wager,  25  N.  Y.  328; 
Albrecht  v.  Pell,  18  N.  Y.  Supr.  127. 
2.  Clarke's  Appeal,  79  Penn.  St. 
376,  19  A.  274;  Schoul.  Hus.  &  Wife, 
§  442;  Huston  v.  Cone,  24  Ohio  St. 
11.  For  the  statute  riglits  of  a  hus- 
band under  a  devise  by  his  wife  with- 
out his  consent,  see  152  Mass.  414,  25 
N.  E.  611.  Concerning  election  by 
a  surviving  spouse  to  take  or  not 
under  tlie  will  of  the  deceased  spouse, 
see  at  length  Sc-houl.  Exrs.  §§  1457, 
1489    (Vol.   II). 


G8 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN.  §    58 

§  58.  Wife's  Will  under  the  Civil  Law;  Present  Tendency  to 
Conjugal  Equality. 

It  is  well  understood  that,  bj  the  Roman  civil  law,  a  married 
woman  possessed  the  same  testamentary  capacity  in  all  respects 
as  a  feme  sole.^  And  such  is  the  law  in  France,  Holland,  Spain, 
and  the  European  countries  generally.*  In  Scotland  the  wife  is 
permitted  to  bequeath  her  share  of  the  common  goods,  even  with- 
out the  husband's  assent.^  The  early  policy  of  England  as  to  the 
wills  of  married  women  seems  in  truth  peculiar  to  that  country. 
For  Voet  and  other  publicists  have  declared  that,  although  the 
wife  should  not  be  allowed  to  make  a  contract  without  the  consent 
of  her  husband,  yet  she  ought  to  be  permitted  to  make  a  will,  be- 
cause it  does  not  take  effect  until  the  marital  authority  has  ceased.^ 
And  the  obvious  tendency  at  present  in  England  and  the  United 
States  is  to  emancipate  the  wife  from  her  ancient  disabili'ties  in 
that  respect ;  notwithstanding  which  the  restriction  seems  a  wise 
one,  that  neither  spouse  shall  utterly  deprive  the  other  of  the 
usual  and  legal  distributive  rights  at  a  capricious  discretion.'^ 

3.  2  Bl.  Com.  497.  must     be     nttested,     witnessed,     and 

4.  4  Burge  Col.  &  For.  Laws,  326.  proven  after  the  ordinary  manner  of 

5.  lb.   328.  wills.     It  cannot  be  said   in   any    of 

6.  Voet,  Sands  &  Rodenb,  cited  4  these  States  that  the  doctrine  of  the 
Eurge  Col.  &  For.  Laws,  326.  We  wife's  testamentary  capacity  was 
may  understand,  therefore,  why  the  borrowed  entirely  from  the  English 
Louisiana  Code  permmits  the  wife  to  common  law,  or  underwent  corres- 
make  her  testament  without  the  au-  ponding  modification;  though  the 
thority  of  her  husband.  La.  Code,  final  resiilts  to  this  day  are  found  to 
art.  132.  And  in  other  Southwestern  be  quite  similar,  and  statutes  enacted 
Ftates,  under  the  community  system,  since  1870  conform  to  the  general 
the  wife's  right  of  testamentary  dis-  American  rule.  On  our  Southwestern 
position  is  likewise  to  be  found.  In  frontier,  indeed,  as  a  result  of  the 
Mississippi  this  right  has  been  long  mingled  influence  which  first  moulded 
favored;  nor  is  it  abridged  by  con-  these  States,  the  civil  and  common 
struction  of  the  married  women's  law  systems  of  jurisprudence  are 
acts.     Lee   v.   Bennett,   31  Miss.   119.  found  today  inseparably  blended. 

In   California   the   statute  gives    the  7.  The   argument   which   applies   in 

wife     power    to    dispose    of    all    her  favor  of  a  widow's  election  to  decline 

separate    estate   without   the    concur-  the  provisions  of  her  husband's  will 

rence  of   her   husband,   but   her    will  should    vice   versa  be   available   to   a 

69 


§    59  LAW    OF    WILLS.  [part    II. 

§  59.  Re-Execution  of  Will  after  Coverture;  Expectant  Prop- 
erty, etc. 

In  England,  before  the  present  English  statute,  1  Vict.  c.  26, 
went  into  operation,  a  widow  might,  without  any  formal  republi- 
cation, recognize  her  will  made  during  coverture  or  one  made  by 
her  before  her  marriage,  and  so  give  it  full  validity.^  But  this 
rule  is  changed  from  January,  1838,  by  force  of  that  statute ;  and 
republication  must  now  be  in  the  particular  mode  pointed  out  by 
the  statute,  tantamount  to  re-execution,  and  not  by  parol.^  Hence 
a  mere  signature  by  herself  and  other  parties  as  witnesses,  the 
testatrix  saying  nothing  about  the  reason  of  her  signing,  and  mak- 
ing no  request  for  the  others  to  sign  as  witnesses,  is  held  not  to 
amount  to  a  republication,  and  the  will  fails  in  consequence  to 
operate.-^  iSTor  can  the  husband's  parol  assent  during  coverture  bo 
said  to  give  the  will  efficiency  afterwards  without  a  formal  re- 
publication, if  the  husband  dies  before  the  wife^ 

As  to  expectant  property  not  vesting  in  the  wife  until  after  her 
husband's  death,  she  ought  to  re-execute  her  will  upon  his  de- 
cease, or  else  make  a  new  one.^  So  in  other  respects  as  affecting 
property  afterwards  acquired  by  her  under  his  will.  For  as  to 
such  property  she  was  intestable  during  coverture. 

husband.     Either  husband  or  wife  aa  1.  Dunn  v.  Dunn,  L.  R.  1  P.  &  D. 

towards  the  other  may  prove  too  gen-  277.     Bilke  v.   Roper,  45   Ch.  D.   633 

erous  or  else  too  niggardly,  if  left  to  (1890),    carries    that    principle     still 

an     unfettered     discretion,    such     are  farther.     And   see   post,    Part   IV,    as 

the   perils    of   a   life   coinpanionsliip;  to    Rei)ublication. 

and  this  the  new  statutes  will  prob-  2.  Willojk  v.  Noble,  L.  R.  7  H.  L. 

ably  in  time  demonstrate.     See  Dick-  580,   597;    supra,   §   48. 

Inson  V.  Dickinson,  61  Penn.  St.  401;  In   a   Kentucky  case,  the   adoption 

Sciioul.   Exrs.  §   1457   and  citations.  and   recognition  by  the  widow    of    a 

8.  1  Wms.  Exrs.  55;  Miller  v.  will  made  by  her  during  coverture 
Brown,  2  Hagg.  209;  3  Add.  264;  was  regarded  as  sufficient  without  a 
Long  V.  Aldred,  3  Add.  48.  re-execution.    Porter  v.   Ford,  82  Ky. 

9.  VVollaston,  lie,   12   W.   R.   18;    1  191. 

Wms.  Exrs.  55;   VVillock  v.  Noble,  L.  3.  Willock  v.  Noble,  L.  R.  7  H.  L. 

n.   7   II.   L.   580;    Graham,   Goods  of,       GSO;   Scaramell  v.  Wilkinson,  2  East, 
'L.    M.   2   P.  &  D.   385;    (1895)    2   Ch.       556. 


m; 


TO 


€HAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN.  §    60 

§  60.  Devise  or  Bequest  to  the  Husband;  his  Marital  Influence. 

There  can  be  little  doubt  of  the  leluctance  with  which  courts  of 
equity  sustain  devises  from  the  wife  to  her  husband.  For  the 
Jong-established  policy  of  our  law,  though  favoring,  to  be  sure,  the 
husband's  inheritance  of  his  wife's  personalty,  casts  the  descent  of 
her  lands  upon  those  of  her  own  blood.  There  are  decisions  to  the 
effect  that  the  husband  cannot  become  the  gainer,  or  have  his  mari- 
tal rights  extended,  by  his  wife's  testamentary  disposition  of  her 
lands.  But  they  turn  rather  upon  statutory  construction  than 
principle.'*  In  Isew  York  the  Married  Women's  Act  of  1849  gave 
the  wife  power  "  to  convey  and  devise  real  and  personal  property  " 
^'  as  if  she  were  unmarried ;  "  and  it  was  held  that,  notwithstanding 
these  words,  a  deed  executed  by  a  wife,  in  contemplation  of  death, 
to  her  husband,  in  good  faith  and  voluntarily,  was  wholly  ineffec- 
tual.'" On  the  other  hand,  the  wife's  bequest  of  her  cJwses  in  action 
to  her  husband  has  been  upheld  in  more  than  one  State. ^ 

Wills  of  married  women  unduly  obtained  through  the  marital 
influence  and  authority  of  their  husbands,  are  of  course  invalid, 
though  the  case  should  fall  within  one  of  the  exceptions  to  the 
wife's  general  incapacity.^  So  if  a  wife,  having  power  to  dispose 
of  property  by  her  will,  makes  her  will,  and  afterwards  destroys  it 
by  the  compulsion  of  her  husband,  it  may  be  established  after- 
wards, on  due  proof  of  the  compulsory  destruction,  and  of  its  con- 
tents and  execution.^ 

But  in  the  analogous  instance  of  the  wife's  appointment  to  her 
husband,  it  has  been  held  that  the  circumstances  that  the  deed  had 
been  prepared  by  her  husband's  solicitor,  that  it  had  not  been  read 
over  at  the  time  of  the  execution,  and  the  evidence  of  one  of  the 
attesting  witnesses  that  she  was  agitated  and  distressed  at  the  time 
of  the  execution  and  signed  it  in  a  reluctant  manner,  will  not  be 

4.  White  V.  Wager,  25  N.  Y.  328;  6.  Caldwell     v.     Renfrew,     33     Vt. 
Morse     v.     Thompson,    4    Cush.    562;  213;    Burton  v.  Holly,   18   Ala.   408. 
Wakefield   v.   Phelps.   37   N.   H.   295;  7.  Marsh  v.  Tyrrell,  2  Hagg.  84;  2 
Hood  V.  Archer,   1  McCord,  225.  Hagg.    179;    1   Wms.   Exrs.   60. 

5.  This  was  no  will.  White  v.  8.  Williams  v.  Baker,  Mss.,  cited 
W^iger,  25  N.  Y.  328.  1   Wms.   Exrs.  60. 

n 


§    62  LAW    OF    WILLS.  [pART    11. 

sufficient  to  invalidate  the  instrument.^  The  wife's  will  or  ap- 
pointment in  favor  of  her  husband  may  be  revoked  as  in  other 
cases. -^ 

§  61.  Husband's  Agreement  as  to  Wife's  Testamentary  Dispo- 
sition of  her  Lands. 

A  married  woman,  being  desirous  of  making  a  disposition  of  her 
real  estate,  to  take  effect  after  her  decease,  united  with  her  hus- 
band in  the  execution  of  a  deed  of  the  same  to  a  trustee,  authoriz- 
ing him  to  make  a  sale  thereof,  and  out  of  the  proceeds  to  pay  cer- 
tain sums  to  particular  individuals,  and  the  remainder  to  her 
legal  representatives.  The  husband  received  the  deed  after  its 
execution,  upon  his  express  promise  to  deliver  it  to  the  grantee, 
at  his  wife's  decease,  if  that  should  occur  before  his  own.  Upon 
her  death  before  the  husband,  a  court  of  equity  decreed  the  de- 
liver}'  of  the  deed  to  the  grantee,  on  the  ground  that  the  title  to 
such  estate  had  vested  in  him." 

A  husband's  written  consent  to  his  wife's  devise  of  her  real 
property  does  not  require  a  consideration  to  support  it.^ 

§  62.  Mutual  Wills  of  Husband  and  Wife. 

It  is  held  in  Pennsylvania,  that  where  husband  and  wife  had 
wills  prepared  giving  their  property  to  one  another,  but  each  by 
mistake  signed  the  other's  will,  and  the  husban'd  afterwards  died, 
the  legislature  could  pass  no  subsequent  law  to  reform  his  will ; 
inasmuch  as  the  right  of  his  heirs  became  vested  on  his  death  as 

9.  Xodby  v.  Xodby,  11  E.  L.  &  Eq.  3.  Erickson  v.  Robertson,  133  N. 
100.  At  the  same  time  the  court  ad-  W.  164.  116  Minn.  90.  Wliere  hus- 
mitted  that  such  deeds  should  be  re-  band  and  wife  agree  to  execute  re- 
garded with  jealousy  and  that  the  ciprocal  wills  the  contract  of  the  one 
circum»tancoi5  of  tlieir  execution  is  sufTieient  consideration  for  tlie 
oii;,'ht   to   be   closely   scrutinized.  contract  of  the  other.  Brown  v.  Web- 

1.  Eustace,  Goods  of,  L.  R.  3  P.  &  ster,  134  N.  W.  185,  90  Neb.  591  (an 
I).    183.  oral   agreement  followed  by  perform- 

2.  Woodward    v.    Camp,    22    Conn.  ancc). 
4r,7. 

72 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN. 


63 


an  intestate.*  Joint  or  mutual  wills  by  husband  and  wife  are 
recognized  in  various  jurisdictions.^  But,  of  course,  one  spouse 
cannot  devise  or  bequeath  the  property  of  the  other.^ 


§  63.  Wife's  Gift  Causa  Mortis. 

The  same  principles  which  regulate  the  wife's  testamentary  dis- 
position of  her  personal  property  should  regulate  her  gift  causa 
mortis  likewise.^  Therefore  it  is  held  that  the  wife's  gift  of  any 
of  her  several  chattels  during  her  last  illness,  and  in  expectation 
of  death,  is,  like  her  will,  valid  on  principle  only  by  the  assent  of 
her  husband.^  On  the  other  hand,  the  married  women's  acts  which 
enlarge  the  wife's  right  to  hold  and  dispose  of  property  as  her 
own,  and  impair  the  ancient  coverture  title  of  the  husband,  are 
in  some  States  given  the  contrary  eifect;  and  in  Massachusetts,  a 
wife  has  been  permitted  to  dispose  by  gift  causa  mortis  of  specific 
articles  of  her  separate  personal  property  without  her  husband's 
consent,  regardless  of  statute  restrictions  still  placed  upon  her  tes- 
tamentary capacity.^ 


4.  Alter'3  Appeal,  67  Penn.  St.  341, 
5  Am.  Rep.  433. 

5.  And  see  resulting  trust  mani- 
fested in  Keith  V.  Miller,  174  111.  64, 
151.  See  post.  Part  V.,  as  to  joint 
or  mutual  \yills  in  general. 

6.  Prince  v.  Prince,  117  P.  255, 
260,  64  Wash.  552;  Bower  v.  Daniel, 
95   S.   W.   347,   198  Mo.  289. 

7.  See  on  the  subject  of  gifts  causa 
mortis  generally,  2  Schoul.  Pers. 
Prop.   2d  Ed.    §§    135-198. 

8.  Jones  v.  Brown,  34  N.  H.  439. 
See  Kilby  v.  Godwin,  2  Del.  Ch.  61, 
as  to  the  donation  of  a  wife's  sepa- 
rate property. 

9.  Marshall  v.  Berry,  13  Allen,  43. 
Says  Wells,  J.,  of  the  gift  causa  mor- 
tis: "Although  it  is  of  a  testamen- 
tary character  in  some  of  its  inci- 
dents, .  .  .  yet,   inasmuch  as,  by  our 


law,  an  actual  delivery,  or  some 
equivalent  act,  by  the  donor,  in  his 
lifetime,  is  necessary  to  its  validity, 
we  think  it  must  be  regarded  as,  in 
its  essential  character,  a  gift."  This 
decision  is  to  be  regretted.  The  im- 
plied conditions  of  revocation  which 
accompany  such  gifts  make  the  dis- 
position so  nearly  ambulatory,  like 
that  of  a  will,  that  the  policy  of  the 
law  should  not  differ  in  the  two 
cases,  except  to  discountenance  such 
gifts  as  much  as  possible.  The  gift 
causa  m,ortis  as  sanctioned  in  modern 
times  is  liable  to  the  worst  objections 
ever  urged  against  the  policy  of  in- 
formal wills;  and  it  seems  highly  de- 
sirable that  such  gifts  be  either  re- 
strained by  legislation  or  discarded 
altogether.  See  2  Schoul.  Pers.  Prop. 
§§    197,    198.      See,    further,   Vosburg 


io 


:§    64  3LAW    OF    WILLS.  [PART    IL 

There  appears  no  impolicy  in  making  the  husband  the  donee, 
wherever  the  wife's  gift  causa  mortis^  confined  to  personal  prop- 
erty, is  sustainable  at  all.  It  was  decided  in  Vermont,  some  years 
ago,  that  a  married  woman  might  give  notes  causa  mortis  which 
she  held  as  her  separate  property  to  her  husband  as  trustee  for 
other  persons,  and  thereby  vest  in  him  a  good  legal  title  as  against 
her  administrator.  "  In  this  view  alone,"  added  the  court,  "  it 
seems  to  be  needless  to  discuss  whether  the  husband  could  be  a 
donee  causa  mortis  of  the  wife;  and  yet  on  principle  it  is  quite 
difficult  to  assign  a  cogent  or  plausible  reason  why  he  might  not 
be."  ^  On  the  other  hand,  the  husband  may  set  up  his  antenuptial 
contract  with  his  wife  in  reference  to  certain  property,  so  as  to 
prevent  her  gift  causa  mortis  to  others  from  taking  effect  to  his 
prejudice.^ 

§  64.  Wife's  Execution  of  a  Testamentary  Power. 

Finally,  it  may  be  observed  that,  both  in  England  and  America, 
a  married  woman  may  make  a  special  testamentary  disposition  of 
real  or  personal  estate  under  a  power,  even  where  her  general  tes- 
tamentary capacity  is  by  law  denied  or  restricted.  There  are  many 
decisions  found  to  this  effect,  in  England  particularly.^     A  wife 

V.  Mallory,  135  N.  W.  577   (Iowa),  as  granted.     Pagley  v.  Tongue,  L.  R.   1 

to   distinction   of   gifts   causa   mortis  P.  &   D.   158;   Richards,  Goods  of,  L. 

from   a  testamentary  disposition.  R.    1   P.   &   D.   156;    L.  R.  1   P.  &   D. 

1.  Caldwell  v.  Renfrew,  33  Vt.  213.  319,  323.     And  see  Trappes  v.  Mere- 

2.  Lawrence  v.  Barrett,  2  Allen,  36.  dith,  L.  R.  7  Ch.  248;  Graham,  Goods 

3.  4  Kent.  Com.  506;  2  ib.  170,  of,  L.  R.  2  P.  &  D.  385.  English  prac- 
171;  Heath  v.  Withington,  6  Cush.  tice  now  requires  that  the  wife's  tes- 
497;  West  v.  West,  10  S.  &  R.  446;  tamentary  appointment  under  a 
2  Perry  Tru.st3,  §  668;  Dunn's  Ap-  power  shall,  in  order  to  avail  in  law 
peal,  85  Penn.  St.  94;  Dnmiiiick  v.  or  equity,  be  presented  for  probate, 
Michael,  4  Sandf.  374 ;  Huglios  v.  though  a  dilTerent  rule  was  formerly 
Wells,  13  E.  L.  &  Eq.  389;  Shattock  applied;  the  court,  however,  grants 
y.  Shattock,  L.  R.  2  Eq.  182;  Rogers  probate  of  sucli  an  appointment 
V.  Ilinton,  1  Phill.  (N.  C.)  Eq.  101;  without  the  husband's  consent,  limit- 
1  Wms.  Exrs.  .'>6;  Ludlnm,  Re  ing  it  to  the  property  comprised  in 
(1890),  W.  N.  162.  And  see  in  gen-  the  power.  1  Wms.  E.xrs.  56,  57; 
tral.  Sugden  on  Powers,  c.  3.  TJarnea  v.  Vincent,  5  Moore  P.  C.  201. 

Tn   cases   of  doubt,   a    limited    pro-  Where    a    will  is  only  an  appoint- 

bate     of     the     instrument     may     he      tnent   under   a   settlement,   the  trus- 

74 


CHAP.    III.]  INCAPACITY    OF    MARRIED    WOMEN. 


CA 


may  have  power  to  appoint  certain  property  by  will  and  not  by 
deed,  and  vice  versa}  And  in  some  cases,  particularly  those  which 
involve  property  rights  in  the  wife's  lands,  the  courts  seem  to  have 
been  misled  by  the  similarity  between  separate  estates  and  estates 
with  a  power  of  appointment  given  to  the  wife;  and  therefore  to 
have  applied  the  terms  "  devise,"  "  will,"  and  "  appointment " 
somewhat  indiscriminately.^ 

Kevocation  and  the  other  incidents  of  ordinary  wills  attend  pro 
tanto  the  wife's  testamentary  disposition  under  a  power  ;^  which, 
of  course,  may  be  so  extensively  conferred  under  the  trust  as  to 
embrace  a  considerable  property,  and  perhaps  all,  in  fact,  of  her 
personal  property.  The  same  formalities  are  not  necessarily 
requisite  in  executing  a  power,  as  in  disposing  of  separate  prop- 
erty ;  but  rather  the  terms  prescribed  by  that  power  should  furnish 
the  criterion.^  This  doctrine,  however,  is  liable  to  statute  modifi- 
cation founded  in  the  general  policy  of  prescribing  a  uniform  mode 
of  execution  and  attestation  for  all  wills.* 


tees  named  do  not  act.  strictly  speak- 
ing, as  executors.  Fraser,  Goods  of, 
L.  R.  2  P.  &  D.  183.  Nor  do  the  ex- 
ecutors so  called  of  the  will  of  a 
married  woman  made  under  a  power 
take  anything  by  right  of  representa- 
tion, but  merely  under  the  power, 
subject  to  the  restraints  with  which 
that  power  was  coupled;  and  conse- 
quently their  title  cannot  extend  be- 
yond the  property  disposed  of  by 
the  disposition  under  the  power.  Tug- 
m^n  V,  Hopkins,  4  M.  &  Gr.  389;  1 
Sw.  &  Tr.  465;  1  Wms.  Exrs.  59. 

4.  See  Harvey,  Re,  28  W.  R.  73,  as, 
to  subjecting  appointed  funds  as 
assets  for  the  wife's  debts. 

5.  A  wife  made  a  will  disposing  of 
a  fund  over  which  she  had  a  power, 
and  also  of  a  fund  over  which  she 
had  no  power,  and  made  her  husband 
her  executor,  and  he  proved  her  will 
generally.  It  was  held  that  as  to  the 
fund   over  which   she   had   no  power, 


the  will  was  valid,  as  made  with  the 
husband's  assent.  Fane,  Ex  parte, 
16  Sim.  403;  supra,  §  48. 

6.  See  Harvey,  i?e,  28  W.  R.  73,  a3 
to  subjecting  appointed  funds  as  as- 
sets  for   the   wife's   debts. 

7.  Schley  v.  McCeney,  36  Md.  266. 

8.  Under  the  English  Statute  of 
Wills  (1  Vict.  c.  26),  for  instance, 
it  is  expressly  declared  that  no  ap- 
pointment made  by  will,  in  exercise 
of  any  power,  shall  be  valid  unless 
executed  in  the  manner  required  for 
other  wills;  and  further,  that  every 
will  so  executed  shall,  as  respects 
execution  and  attestation,  be  a  valid 
execvition  of  the  power,  notwith- 
standing the  power  as  conferred  im- 
posed additional  or  different  solem- 
nities of  execution.  Stat.  1  Vict.  c. 
26,  §  10  (1837)  ;  1  Wms.  Exrs.  pref- 
ace: Este  V.  Este.  2  Robert.  351;  2 
Robert.   461 ;    appendix   post. 


75 


§    65  LAW    OF    WILLS.  [PAET    II. 

CHAPTER  IV. 

INCAPACITY  OF  INSANE  PERSONS  IN  GENERAL. 

§  65.  Will  of  an  Insane  Person  Void ;  Difficulty  of  Modern  Tests. 

Any  will  which  is  the  offspring  of  an  unsound  mind  is  void ; 
the  broad  principle  of  personal  incapacity  which  is  here  discovered 
extending  to  all  dispositions  of  property,  all  contracts,  the  entire 
management  of  one's  own  affairs.  In  an  earlier  age  the  incapacity 
of  insane  persons  to  make  a  will  was  plainly,  almost  brutally,  an- 
nounced by  our  jurists,  the  common  law  drawing  no  fine  line  be- 
tween persons  sui  juris  and  those  7ion  compotes,  which  latter  class 
of  beings  might  be  found  huddled  together  in  the  vocabulary  as 
madmen,  lunatics,  idiots,  and  natural  fools.  The  disposition  was- 
to  narrow  the  definition  of  the  non  compos  (for  "'  insanity  "  is 
a  gentler  word  than  our  early  progenitors  were  accustomed  to  apply 
to  such  unfortunates)  and  thus  reduce  the  number  of  those  whose 
kinsmen  should  feel  the  reproach  of  a  malady  which  bore  a  moral 
infliction  to  the  victim.  Until  the  latter  half  of  the  eighteenth 
century  asylums  for  hygienic  treatment  were  scarcely  known. 
The  English  madhouse  was  a  pandemonium ;  scions  of  the  rich  and 
well-born  who  had  lost  their  reason  were  locked  up  in  some  distant 
comer  of  the  mansion ;  while  the  common  herd  of  lunatics  and 
idiots  were  chained  in  cells  or  pens  or  wandered,  if  harmless,  as 
vagrants.  In  many  of  our  American  towns  the  selectmen  would 
let  them  out  to  the  lowest  bidder  to  work  for  a  scanty  and  miserable 
subsistence.  The  dramatist  has  depicted  lunatic  kings  and  beggars 
of  our  race  as  baring  their  breasts  together  to  the  howling  storm 
and  inviting  the  elements  to  aggravate  their  disorder;  but  it  was 
not  until  George  III.  gave  insanity  in  real  life  the  prestige  of 
royal  example  that  the  disorder  began  to  receive  tender  medical 
treatment,  and  the  vulgar  oj)iiiion  that  one  who  is  Jion  compos 
must  remain  so  began  to  turn.^ 

9.  See   preface     to     1     Wliarton     &       cliantjc     of     sontimont    amonp;    loyal 
SI i lie,  Med.   Jur.   .'5(1    Ed.,   where    the      Englishmen,   produced    by    the    nial- 

76 


CHAP.    IV.]  INCAPACITY    OF    INSANE    PERSONS.  §    66 

At  the  present  day  the  drift  is  in  quite  the  opposite  direction; 
the  insane  are  humanely  cared  for,  and  much  less  than  formerly 
is  the  malady  found  incurable ;  but  what  with  s_)Tnptoms  increased 
and  diversified  greatly  in  the  multitude  of  patients  whose  minds 
have  given  way  under  the  prodigious  strain  of  our  modern  social  re- 
sponsibility;  what  with  the  inventive  zeal  and  complexity  of  all 
modern  research ;  we  now  find  the  te&ts  of  mental  incapacity  run- 
ning out  into  the  most  subtle  of  psychological  refinements.^  Next 
to  determining  the  legal  responsibility  of  the  felon  for  his  crime, 
nothing  so  draws  the  host  of  contending  medical  experts  into  our 
courts  in  these  days  as  the  inquiry  whedier  one  who  has  left  behind 
him  a  will  for  his  survivoi's  to  quarrel  over  was  of  sound  and 
disposing  mind  when  he  executed  it. 

§  66.  The  Same  Subject. 

Mental  unsoundness  involves,  we  may  assume,  disorder  of  will 
and  feeling  as  well  as  of  intellect;  and  hence  the  feebleness  of  voli- 
tion  which   may   subject   one    to    the   importunities,    the    unfair 

ady  of  their  king,  is  well  traced  out.  tion.  Of  the  modern  drift  of  senti- 
Almost  simultaneously  (it  is  here  ment  towards  the  insane  he  thus  re- 
added)  the  investigations  of  Pinel  marks:  "Madness  having  been  shown 
tooke  place  in  Paris,  which  resulted  to  be  capable  of  cure,  and  to  be  a 
in  the  separation  from  the  common  condition  in  itself  implying  no  moral 
prison  in  that  city  of  a  distinct  asy-  stigma,  and  insane  asylums  having 
lum  for  healment  of  the  insane  based  been  proved  to  be  the  places  where 
on  wise  sanitary  regulations.  As  to  the  insane  can  most  readily  be  re- 
the  treatment  of  the  English  maniac  stored  to  health,  many  persons  come 
in  the  earlier  days  of  the  Georges,  to  be  regarded  by  their  friends  and 
one  need  only  turn  over  Hogarth's  by  a  rightful  public  feeling  as  insane 
pictures  in  "  The  Rake's  Progress."  who  previously  would  have  been 
1.  The  influence  of  Rousseau's  treated  as  sane.  The  definition  of  in- 
works  (1760-1764)  in  converting  peo-  sanity,  in  the  philanthropic  mini  at 
pie  from  the  old  belief  that  insanity  least,  was  so  enlarged  as  to  include 
was  a  crime  to  an  opinion  too  indul-  all  persons  who.  while  not  being 
gent  in  the  opposite  direction;  clearly  maniacs,  were  yet  subject  to 
namely,  that  crime  should  be  healed  mental  or  moral  anomalies  which  a 
as  insanity  and  provoke  our  curious  wise  medical  treatment  could  re- 
regard  and  sympathy,  elicits  Dr.  move."  1  Whart.  &  Stille,  pref. 
Wharton's    comment   in   this   connec- 

77 


§    G7  LAW    OF    WILLS.  [pART    IL 

pressure,  tlie  undue  influence,  violent  or  crafty,  of  those  about  him, 
so  as  to  make  the  will  theirs  and  not  his,  and  cause  it  to  fail  justly 
of  probate  on  that  ground,  aside  from  the  reasonableness 
or  unreasonableness  of  its  provisions.  This  is  a  subject 
of  much  prominence  in  our  present  connection ;  yet  coercion 
might  be  exerted  uipon  a  sane  person  to  a  like  result; 
and  we  shall  postpone  its  discussion  to  that  of  insanity 
with  which  it  is  so  often  associated.  And  in  dealing  directly  with 
testamentary  incapacity  on  the  ground  of  insanity,  a  topic  highly 
interesting  and  important  under  our  present  law  of  wills,  we  shall 
take  the  natural  order  of  treating  first  of  the  plainer  manifestations 
of  this  incapacity,  thence  passing  to  the  finer  shades  of  mental 
disorder,  until  our  investigation  becomes  complete. 

§  67.  Standard  of  Mental'  Incapacity  in  Wills  as  compared  with 
Contracts,  etc. 

Let  us  premise,  however,  that  the  same  legal  standard  of  mental 
unsoundness  is  not  asserted  for  invalidating  a  will  as  a  contract, 
nor  for  avoiding  responsibility  for  crime  as  in  either  of  these  other 
instances.  The  question  of  "  guilty  "  or  "  not  guilty,"  of  incapacity 
for  distinguishing  between  right  and  wrong,  we  may  dismiss  at 
once.^  As  between  contracts  and  wills,  several  eminent  judges 
have  laid  it  down  that  a  man  may  be  capable  of  making  a  will,  and 
yet  incapable  of  making  a  contract^  or  a  deed ;  *  tliat  in  a  sale,  for 
example,  mind  is  opposed  to  mind,  and  interests  and  efforts  so 
antagonize  that  the  just  bearings  of  the  whole  transaction  are  less 
clearly  traceable  than  where,  under  the  common  circum.'^tances  of 
a  testamentary  disposition,  one  is  left  free  to  act  upon  his  own 

2.  A  less  degree  of  imbecility  is  Wash.  C.  C.  262;  Thompson  v.  Ky- 
neccssaiy  to  invalidate  a  will  than  ner,  65  Pcnn.  St.  .368;  Brinkman  v, 
would  be  ground  of  acquittal  from  a  Rueggesick,  71  Mo.  55.1;  83  Mo.  175; 
criminal  charge.  McTaggart  v.  Wood  v.  Lane,  102  Ga.  199,  29  S.  E. 
Thompson,     14     I'cnn.     St.    149.      Cf.  180. 

Kinne  v.   Kinne,   1   Conn.   102.  4.  Kerr   v.   Lunsford,    31     W.    Va. 

3.  Hanks     v.     rjoodfellow.    L.    R.    5       659. 
Q.    Ij.    567;      Stevens   v.   Vaiicieve,     4 


CHAP.  IV.]      INCAPACITY  OF  INSANE  PEESONS.  §  6t 

perceptions  merely.^  As  a  general  proposition,  less  capacity,  it 
is  said,  will  suffice  for  making  a  will  than  to  transact  ordinary 
business.®  All  this  presupposes,  of  course,  that  the  testator's  mind 
has  been  left  free  to  operate  without  constraint  or  importunity  of 
any  sort  from  interested  parties.  For,  surely,  no  class  of  property 
dispositions  is  so  liable  to  close,  secret,  and  sinister  influences 
while  the  owner  is  mentally  failing  as  the  present;  and  this,  more 
particularly,  where  one's  disposing  act  dates  at  his  last  illness. 
Nor  should  it  be  forgotten  that  a  sale  or  other  single  transaction 
affects  usually  a  small  portion  of  one's  estate,  while  a  testament 
generally  embraces  the  whole  by  a  sweeping  transfer;  that  if 
minds  antagonize  in  ordinary  business,  that  antagonism  may  serve 
to  recall  or  modify  afterwards,  or,  at  all  events,  to  explain  the' 
mutual  intent  where  injustice  ensues ;  whereas  the  testamentary 
act  once  operating  cannot  be  revoked  or  altered ;  its  motives  are 
outside  the  scope  of  one's  own  explanation,  and  the  injustice,  if 
any  be  done,  is  forever  beyond  the  reach  of  correction.  Further- 
more, the  testamentary  act  is  that  of  an  individual,  and  only 
imperative  when  one  wishes  to  break  the  common  rule  of  succes- 
sion, and  disturb  the  presumptive  rights  of  spouse  and  kindred 
surviving  him ;  whereas  business  transactions  inter  vivos  involve 
reciprocal  intereists  which  the  State  seldom  regulates  and  the  parties 
themselves  cannot  dispense  with ;  so  that  the  inquiry  may  here, 
if  not  elsewhere,  be  pertinent,  how  far  should  courts  go  in  up- 
holding an  unjust  disposition  made  by  one  of  doubtful  capacity 
in  derogation  of  the  public  policy  announced  in  the  statutes  of 
descent  and  distribution  V 

5.  Converse  v.  Converse,  21  Vt.  567,  50  N.  W.  637.  And  see  Stewart 
168,  52  Am.  Dec.  58.  But  in  some  v.  Lyons,  47  S.  E.  442,  54  W.  Va. 
cases  it  has  been  held  that  the  capac-  665 ;  Cros^an  v.  Crossan,  70  S.  W. 
ity  requisite  for  making  either  will  136,  169  Mo.  631;  Weedman's  Estate, 
or  contract  is  precisely  the  same.  98  N.  E.  956,  254  111.  504. 
Coleman  v.  Robertson,  17  Ala.  84.  7.  As   opposed   to   the   common    ex- 

6.  Converse  v.  Converse,  21  Vt.  pression  that  a  less  degree  of  capac- 
168;  Harrison  v.  Rowan,  3  Wash.  C.  ity  is  requisite  for  making  a  will' 
C.   580;     Prentis   v.   Bates,   88   Mich,  tlian   a   contract   may    be    cited    the 

79 


§  67 


LAW    OF    WILLS. 


[part   II. 


We  should  conclude,  therefore,  that  as  between  contract  and 
testamentary  capacity,  it  is  the  fairer  mode  to  contrast  the  stand- 
ards, when  the  contrast  becomes  needful  at  all,  by  making  the 
comparison  that  of  differing  standpoints  rather  than  of  differing 
degrees  from  a  common  standpoint.^ 


opinion  of  Sir  J.  Hannen  (1873)  in 
Boughton  V.  Knight,  L.  R.  3  P.  &  D. 
64,  wbich  lie  explains  in  lb.  72  iiote. 
"  It  has  been  erroneously  supposed," 
he  says  in  the  latter  passage.  "  that 
I  said  that  it  requires  a  greater  de- 
gree of  soundness  to  make  a  will  than 
to  do  any  other  act.  I  never  said 
and  I  never  meant  to  say  so.  What 
I  have  said,  and  I  repeat  it,  is,  that 
if  you  are  at  liberty  to  draw  dis- 
tinctions between  different  degrees  of 
soundness  of  mind,  then,  whatever  is 
the  highest  degree  of  soundness  is 
required  to  make  a  will.  .  .  .  From 
the  character  of  the  act  it  requires 
the  consideration  of  a  larger  variety 
of  circumstances  than  it  required  in 
other  acts,  for  it  involves  reflection 
upon  the  claims  of  the  several  per- 
sons who,  by  nature,  or  through  other 
circumstances,  may  be  supposed  to 
have  claims  on  the  testator's  bounty, 
and  the  power  of  considering  these 
several  claims,  and  of  determining 
in  what  proportions  the  property 
sliall  be  divided  amongst  the  claim- 
ants; and,  therefore,  whatever  de- 
grees tliere  may  be  of  soundness  of 
mind,  the  highest  degree  must  be  re- 
quired for  making  a  will."  The 
chief  value  of  tliese  observations  is 
to  correct  against  that  habit  of  mind 
whicli  compares  capacity  for  making 
a  will  witli  capacity  for  other  trans- 
action.s,  as  though  it  were  a  matter 
of  dogreea  marked  off  upon  one  reg- 
ister. 


In  Louisiana  it  has  been  distinctly 
asserted  from  the  bench  that  testa- 
ments are  more  easily  avoided  than 
contracts  on  the  ground  of  unsound- 
ness of  mind;  though  here  perhaps 
is  felt  the  influence  of  the  civil  law 
which  set  aside  unnatural  or  inoffi- 
cious testaments  more  freely  than 
does  our  common  law.  §  77,  post. 
"  This  distinction,"  it  was  later  ob- 
served, "  applies  to  such  matters  as 
those  of  notoriety  and  interdiction 
and  not  to  the  amount  of  intellect  re- 
quired in  a  testator.  So  far  as  the 
latter  is  concei-ned,  a  will  may  well 
be  made  by  any  mind  which  has  the 
soundness  and  strength  necessary  to 
endure  the  conflict  involved  in  the 
making  of  a  bargain.  It  would  be 
unreasonable  to  require  that  a  testa- 
tor should  have  more  mental  vigor 
and  a  more  lucid  memory  than  a  per- 
son who  makes  a  contract."  Chandler 
V.  Barrett,  21  La.  Ann.  58,  59,  99 
Am.  Dec.  71,  commenting  upon  Au- 
bert  V.  Aubert,  6  La.  Ann.  106. 

8.  It  is  more  safely  said  that  if  a 
person  has  sufficient  understanding 
and  intelligence  for  transacting  his 
ordinary  business,  he  is  sufliciently 
capable  of  making  a  will;  and  to 
such  a  test  testamentary  capacity  is 
often  referred  in  dealing  with  wit- 
nesses who  testify  to  the  point  of 
mental  unsoundness.  This  statement 
puts  the  contract  and  testamentary 
cai)acity  on  a  co-equal  rather  than 
unequal     footing.        See     Benoist     v. 


80 


CHAP.    IV.]  INCAPACITY    OF    INSANE    PERSONS.  §    68 

§  68.  General  Standard  of  Testamentary  Capacity  stated. 

All  other  thing's  being  equal,  the  will  a  fair  one  of  itself, 
properly  executed,  and  neither  undue  influence  nor  insanity  ap- 
pearing to  have  operated  in  its  composition,  the  courts  are  disposed 
to  sustain  it.  Hence  the  comparison  or  similitude  of  testamentary 
with  contract  capacity  which  we  find  so  frequently  asserted  in  favor 
of  the  instrument  propounded  as  the  last  will.  It  is  only  when 
one's  insanity  renders  him  plainly  incapable  of  acting  rationally 
in  the  ordinary  affairs  of  life  and  the  disposition  in  question  is 
the  fruit  of  that  incapacity,  that  the  difficulty  becomes  readily 
solved  by  setting  his  will  aside.  Mental  unsoundness  which  falls 
short  of  this,  namely,  that  which  bodily  infirmity,  distress,  the 
decay  of  advancing  age,  habitual  drunkeness,  or  some  physical 
defect  or  peculiarity  of  character  engenders,  does  not  produce  a 
conclusive  incapacity  to  make  a  will.  For  as  a  general  proposition, 
if  the  testator  possesses  mind  sufficient  to  understand  without 
prompting  the  business  about  which  he  is  engaged  when  his  will 
is  executed,  the  kind  and  extent  of  the  property  to  be  willed,  the 
persons  who  are  the  natural  objects  of  his  bounty,  and  the  manner 
in  which  he  desires  the  disposition  to  take  effect,  his  will  is  a  good 

Murrin,    58    Mo.    307;    144   Mo.    354;  property  bv  will."     See  117  111.  317; 

§  83,  post;  as  to  "sound  and  dispos-  121    111.   376;    14  7   111.    370;    also   83 

Ing  mind,"  etc.  Various  Illinois  cases  Mo.    175.      In    Illinois     (as    in    some 

support  this  statement  of  the  court.  other   States)    statute   expression   in- 

In  Meeker  v.  Meeker,  75  111.  260,  262:  fluences  somewhat  the   ruling  of   the 

"  It  is   a   rule  of  law  that  a  person  courts  as  the  quantum  of  mental  ca- 

who   is   capable   of   transacting   ordi-  pacity.     130  111.  463. 

nary  business  is  also  capable  of  mak-  But  it  is  still  preferable,  we  think, 

ing  a  valid  will.     It  is  not  required  to  treat  testamentarj'  capacity  so  far 

that  he  shall  possess  a  higher  capa-  as  possible,   as   something   furnishing 

city  for  that  than  for  the  transaction  a  distinct  standard  from  that  of  gen- 

of  the  ordinary  affairs  of  business.    A  eral  contract  capacity,  and  requiring 

man    capable    of    buying    and    selling  mental  soundness  to  be  tested  accord- 

propertj',    settling    accounts,    collect-  ingly;    our  true   criterion   at  present 

ing   and   paying   out   money,   or   bor-  being,   not   whether  one  was   capable 

rowing     or      loaning     money,     must  of     this    or    that    transaction    inter 

usually    be    regarded    as    capable    of  vivos,  but  w'hether  he  was  capable  of 

making    a    valid    disposition    of    his  making  a  will.     Thus,  we  shall  see  in 

6  81 


§  68 


LAW    OF    WILLS. 


[PAKT    II. 


one.^  To  quote  Cockburn,  C.  J.,  it  is  admitted  on  all  hands  that 
in  these  varieties  of  mental  unsoundness  as  distinguished  from 
mental  derangement,  "  though  the  mental  frame  may  be  reduced 
below  the  ordinarj^  standard,  yet,  if  there  be  sufficient  intelligence 


the  chapter  on  monomania,  post,  that 
one  may  be  capable  of  transacting 
complicated  business  which  involves 
much  power  of  intellect,  and  yet  be 
under  some  insane  delusion  which 
vitiates  the  will  he  has  executed. 

Testamentary  capacity  does  not  in- 
fer capacity  for  carrying  on  one's 
ordinary  business.  See  70  N.  E.  675; 
209  111.  193;  17  Pick.  373;  71  Mo. 
533  (unable  to  manage  his  estate,  yet 
capable  of  making  a  will)  ;  Johnson 
v.  Farrell,  74  N.  E.  760,  215  111.  542; 
Turner's  Appeal,  44  A.  310,  72  Conn. 
305;  101  N.  E.  614,  258  111.  256. 
'  9.  Delafield  v.  Parish,  25  N.  Y.  10; 
Thompson  v.  Kyner,  65  Penn.  St. 
365;  Higgins  v.  Carlton,  28  Mo.  115; 
39  Penn.  St.  191;  Roe  v.  Taylor,  45 
111.  485;  St.  Leger's  Appeal,  34  Conn. 
435;  Brown  v.  Riggin,  94  111.  560, 
569;  Lewis's  Will,  51  Wis.  101.  7  N. 
W.  829;  Wilson  v.  Mitchell,  101 
Penn.  St.  495,  502;  Shaver  v.  McCar- 
thy, 110  Penn.  St.  339,  5  A.  614; 
Cline  V.  Lindsey,  110  Ind.  337,  11  N. 
E.  441;  120  Ind.  463;  117  111.  317; 
Delaney  v.  Salina,  34  Kan.  532;  9  P. 
271;  Prather  v.  McClelland,  13  S.  W. 
543;  76  Tex.  574;  Kerr  v.  Lunsford, 
31  W.  Va.  659;  Thompson  v.  Ish,  99 
Mo.  160;  12  S.  W.  510;  17  A.  520; 
31  W.  Va.  659,  8  S.  E.  493;  Mc- 
Coy V.  Sheehy,  96  N.  E.  1069,  252 
111.  509;  Seveniag  v.  Smith,  133  N. 
W.  1081,  153  Iowa,  639;  Freoman  v. 
PpM-man,  76  S.  E.  6.57,  71  W.  Va. 
303;  Huston's  Estate,  124  P.  852,  163 
Cal.    166;    Warnpler   v.   Ilarrell,    112 


Va.  635;  Council  v.  Mayhew,  55  So. 
314;  Turner  v.  Anderson,  139  S.  W. 
180,  236  Mo.  523;  Berry  v.  Trust  Co., 
53  A.  720,  96  Md.  451,  94  Am.  St. 
Rep.  598 ;  Catholic  University  v. 
O'Brien,  79  S.  W.  901,  181  Mo.  68; 
Hartley  v.  Lord,  80  P.  433,  38  Wash. 
221;  McCoon  v.  Allen,  45  N.  J.  Eq. 
708,  17  A.  820;  51  N.  J.  Eq.  315,  30 
A.  428;  150  Ind.  159,  49  N.  E.  948; 
50  S.  C.  95,  27  S.  E.  555;  Hall  v. 
Perry,  87  Me.  569,  47  Am.  St.  Rep. 
352,  33  A.  160;  Taylor  v.  Cox.  153 
111.  220,  38  N.  E.  656;  Martin  v 
Thayer,  37  W.  Va.  38,  16  S.  E.  489, 
36  Neb.  393,  54  N.  W.  670;  98  Ala. 
267,  12  S.  803;  Todd  v.  Todd,  77  N. 
E.  680,  221  111.  410;  124  P.  852,  163 
Cal.  166;  Weedman's  Estate,  98  N. 
E.   956,  254  111.  504. 

Whether  the  testator  was  or  was 
not,  at  the  date  of  execution,  able  to 
understand  and  reasonably  to  tran- 
sact the  ordinary  business  of  life,  is 
no  doubt  pertinent  to  the  inquiry. 
See  Brown  v.  Riggin,  94  111.  560,  569. 
Or  such  business  capacity  as  relates 
to  buying,  selling  and  investing. 
180  111.  9.  But  the  precise  point  of 
inquiry  is  an  understanding  of  the 
particular  business,  namely,  of  the 
testamentary  disposition.  Too  much 
stress  should  not  be  laid  on  a  com- 
parison between  one's  contemporane- 
ous and  former  business  habits. 
Brown  v.  Riggin.  supra. 

Ix>rd  Cranworth  has  justly  said  of 
testamentary  incapacity  in  Boyse  v. 
Rossborough,   6   H.   L.   Cas.   45,  that 


82 


CHAP.  IV.]       INCAPACITY  OF  INSANE  PEESONS. 


§   69 


to  understand  and  appreciate  the  testamentary  act  in  its  different 
bearings,  the  power  to  make  a  will  remains."^ 

It  follows  that  one  who  is  incapable  at  the  moment  of  com- 
prehending the  natnre  and  extent  of  his  property,  the  disposition 
to  be  made  of  it  by  testament,  and  the  persons  who  are  or  should 
be  provided  for,  is  not  of  a  sound  disposing  mind.  And  if  this 
mental  condition  be  really  shown  to  exist,  the  will  must  fail,  even 
though  he  may  have  a  glimmering  knowledge  that  he  is  endeavor- 
ing to  make  a  testamentary  disposition  of  his  property.^ 

§  69.  The  Same  Subject:   More  Deference  to  Testator  in  Earlier 
Cases. 

It  is  here  to  be  obsei*ved  that  some  of  the  earlier  cases  have  laid 
down  the  rule  of  testamentary  capacity  with  much  more  subserv- 


the  difficulty  to  be  grappled  witli 
arises  from  the  circumstance  that 
the  question  is  almost  always  one  of 
degree.  "  There  is  no  difficulty  in  the 
case  of  a  raving  madman  or  a  drivel- 
ling idiot  in  saying  that  he  is  not  a 
person  capable  of  disposing  of  prop- 
erty; but  between  such  an  extreme 
case  and  that  of  a  man  of  perfectly 
sound  and  vigorous  understanding 
there  is  every  shade  of  intellect,  every 
degree  of  mental  capacity.  There  is 
no  possibility  of  mistaking  midnight 
for  noon,  but 'at  what  precise  moment 
twilight  becomes  darkness  is  hard  to 
determine." 

The  local  statute,  if  any,  which  de- 
fines the  rule  of  mental  capacity 
should  be  consulted.  144  Ind.  463, 
43  N.  E.  560;  145  Ind.  682,  44  N. 
E.  757.  In  Turner  v.  Anderson,  139 
S.  W.  180,  236  Mo.  523,  stress  is  laid 
upon  understanding  the  ordinary  af- 
fairs of  life,  the  deserts  of  the 
natural  objects  of  one's  bounty  with 
reference  to  their  con  kict  and  treat- 


ment of  him,  their  necessities,  etc. 
For  peculiar  language,  see  also  Wal- 
ker's Will,  128  N.  W.  386,  152  Iowa, 
154;  Crum  v.  Crum,  132  S.  W.  1070, 
231  Mo.  626;  Lindsay's  Estate,  87  A. 
302,  240  Penn.  19  (intelligent  con- 
sciousness of  the  effect,  etc.) .  See  fur- 
ther, 133  P.  307,  165  Cal.  607;  103 
N.  E.  268,  260  111.  299;  143  N.  Y.  S. 
798;  Guarantee  Trust  Co.  v.  Wallsr, 
88  A.  13,  240  Penn.  575. 

1.  Banks  v.  Goodfellow,  L.  R.  5 
Q.  B.  567.  And  see  1  Whart.  &  Stille 
Med.  Jur.  §§  19,  32;  Shelf.  Lunacy, 
277,  278;  1  Redf.  Wills.  123-127; 
Lord  Kenyon  in  Greenwood  v.  Green- 
wood, 3  Curt.  App.  2,  30.  And  see 
Erskine,  J.,  in  Harwood  v.  Baker,  3 
Moore  P.  C.  282. 

2.  Young  v.  Ridenbaugh,  67  Mo. 
574;  Wilson  v.  Mitchell,  101  Penn. 
St.  495,  502;  110  Penn.  St.  339,  5  A. 
614;  Campbell  v.  Campbell,  130  111. 
466.  22  N.  E.  620;  6  Dem.  (X.  Y.) 
123;  Chrisman  v.  Chrisman,  16  Oreg. 
127,  IS  P.  6. 


83 


§    70  LAW    OF    WILLS.  [pART    II. 

ience  to  the  purported  expression  of  one's  last  wishes.  They  seem 
to  have  assumed  that  there  must  be  a  total  want  of  understanding 
in  order  to  render  one  intestable;  that  a  court  ought  to  refrain 
from  measuring  the  capacity  of  a  testator,  if  he  have  any  at  all ; 
and  that  unless  totally  deprived  of  reason  and  non  compos  mentis, 
he  is  the  lawful  disposer  of  his  own  property,  so  that  his  will 
stands  as  a  reason  for  his  actions,  harsh  as  may  be  its  provisions.^ 
This  ascribes  altogether  too  great  sanctity  to  the  testamentary  act 
of  an  individual  as  opposed  to  the  law's  own  will  set  forth  by  the 
statutes  and  founded  in  common  sense ;  and  it  is  well  that  the  best 
considered  of  our  latest  cases  recede  from  so  extreme  and  false 
a  standard. 

§  70.  Incapacity  is  more  than  Weak  Capacity;  Enfeebled  Tes- 
tator may  make  a  Will. 
J^otwithstanding  the  modem  rule  to  be  favored,  we  should  still, 
however,  bear  in  mind  that  incapacity  is  more  than  weak  capacity ; 
and,  as  already  intimated,  mere  feebleness  of  mind  does  not  suffice 
to  invalidate  a  will,  if  the  testator  acted  freely  and  had  sufficient 
mind  to  comprehend  intelligently  the  nature  and  effect  of  the  act 
he  was  performing,  the  estate  he  was  undertaking  to  dispose  of, 
and  the  relajtions  he  held  to  the  various  persons  who  might  naturally 
expect  to  become  the  objects  of  his  bounty.  While  it  is  true 
that  it  is  not  the  duty  of  the  court  to  strain  after  probate,  nor  in 
any  case  to  grant  it  where  grave  doubts  remain  unremovcd  and 
great  difficulties  oppose  themselves  to  so  doing,'*  neither  is  it  the 

3.  Stewart  v.  Lispenard,  26  Wend.  of  a  mean  understanding  (neither  of 
2.55,  modified  by  Delafield  v.  Parish,  the  wise  sort  nor  the  foolish)  but 
25  N".  Y.  10;  Elliot's  Will,  2  J.  J.  indifferent,  as  it  were  betwixt  a  wise 
Marsh.  340;  Burger  v.  Hill,  1  Bradf.  man  and  the  fool,  yea,  though  he 
360;  Dornick  v.  Reichenbach,  10  S.  rather  incline  to  the  foolish  sort,  so 
&  R.  84.  Perhaps,  nfter  all,  this  dif-  that,  for  his  dull  capacity  he  might 
feroncc  is  more  of  dictum  than  of  con-  worthily  be  called  grossum  caput,  a 
elusion  upon  all  tlie  proof.  dull   pate,  or  a  dunce,  such   a  one  is 

4.  Dohifield  v.  P.irish,  25  N.  Y.  35,  not  proliibited  from  making  liis  tes- 
pcr  curiam.  tament."      Swiiib.    pi.    2,    §    4,    ])1.    3. 

••Jf   a    man,"   said    Svvinl)urne,   "be       Tlie    force    of    this    somewliat    brutal 

.    84 


CHAP.    IV.]  I^"  CAPACITY    OF    INSANE    PEESONS. 


§  vo 


duty  of  the  court  to  strain  against  probate^  and  impeach  the  will 
merely  because  it  is  made  in  old  age  or  upon  the  sick  bed,  after  the 
mind  has  lost  a  portion  of  its  former  vigor,  and  has  become  weak- 
ened by  age  or  disease.^    Weakness  of  memory,  vacillation  of  pur- 


statement  lies  in  a  delicate  and  dis- 
criminating application  of  it. 

5.  Meeker  v.  Meeker,  75  111.  260; 
Bundy  v.  McKnight,  48  Ind.  502; 
Duffield  V.  Morris,  2  Harring,  379; 
Legg  V.  Myer,  5  Redf.  (N.  Y.)  628, 
635;  Watson  v.  Donnelly,  28  Barb. 
653.  Even  a  will  somewhat  unfair 
was  upon  this  argument  admitted  to 
probate  in  Legg  v.  Myer,  supra. 

In  Delafield  v.  Parish,  25  N.  Y.  97, 
the  majority  of  the  court  laid  down 
the  following  legal  propositions: 
"  In  law,  the  only  standard  as  to 
mental  capacity  in  all  who  are  not 
idiots  or  lunatics  is  found  in  the  fact 
whether  the  testator  was  compos 
mentis  or  non  compos  mentis,  as 
those  terms  are  used  in  their  fixed 
legal  meaning.  Such  being  the  rule, 
the  question  in  every  case  is,  had  the 
testator,  as  compos  meiitis,  capacity 
to  make  a  will;  not,  had  he  capacity 
to  make  the  will  produced.  If  com- 
pos m,entis,  he  can  make  any  will, 
however  complicated;  if  non  com- 
pos mentis,  he  can  make  no  will — 
not  the  simplest." 

These  rules  (which  appear  to  be 
drawn  somewhat  from  the  literal  ex- 
pression of  a  New  York  statute)  dif- 
fer materially  from  those  announced 
by  Davies,  J.,  in  the  same  case,  and 
may  appear  open  to  grave  exception. 
In  the  first  place,  they  attempt  a 
bolder  line  between  the  sane  and 
the  non-sane  than  medical  experience 
justifies.  Next,  they  leave  out  of 
view  the  varied  operation  of   insane 


delusion,  which,  as  we  well  know  at 
this  day,  might  enter  into  one  testa- 
mentary disposition  but  not  another, 
so  as  to  invalidate  in  the  former  in- 
stance only.  And  again,  they  ignore 
the  possibility  of  undue  influenc;' 
from  without,  to  which  the  wills  of 
all  feeble  and  weak-minded  persons 
of  wealth  are  peculiarly  subjected. 
Far  from  true  appears  the  abstract 
proposition  that  a  testator  who  can 
make  one  will  can  make  any  will. 

To  charge  a  jury  to  find  whether 
a  testator  is  ''  crazy  "  or  not  is  not 
in  good  form,  and  the  word  is  quit  • 
inappropriate  in  such  an  issue. 

Calvin,  Surrogate,  in  Townsend  v. 
Bogart,  5  Redf.  (N.  Y.)  93,  105,  sug- 
gests that  the  use  of  the  term  com- 
pos mentis,  which  is  sometimes  made 
the  standard  of  testamentary  capa- 
city as  meaning  "  sound  mind,"  will 
often  mislead.  And  he  commends 
the  careful  expression  of  the  court 
in  Bundy  v.  McKnight,  48  Ind.  502. 
Here  it  is  observed  tliat  the  law  does 
not  undertake  to  test  a  person's  in- 
telligence, and  define  the  exact  qual- 
ity of  mind  and  memory  which  a  tes- 
tator must  possess  to  authorize  him 
to  make  a  will;  yet  it  does  require 
him  to  possess  a  mind  to  know  the 
extent  and  value  of  his  property,  the 
number  and  names  of  the  persons  who 
are  the  natural  objects  of  his  bounty, 
their  deserts  in  reference  to  their 
conduct  and  treatment  towards  him, 
their  capacity  and  necessities;  that 
he  shall  have  sufiicient  active  memory 


85 


70 


LAW    OF    WILLS. 


[part  il 


jjose,  credulity,  vagueness  of  thought,  may  all  consist  with  adequate 
testamentary  capacity,  under  favorable  circumstances.  And  a 
comprehensive  grasp  of  all  the  requisites  of  testamentary  know- 
ledge in  one  review  appears  unnecessary  provided  the  enfeebled 
testator  understands  in  detail  all  that  he  is  about  and  chooses 
rationally  between  one  disposition  and  another.^ 


to  retain  all  those  facts  in  his  mind, 
long  enough  to  have  his  will  prepared, 
and  executed;  and  if  this  amount  of 
mental  capacity  is  somewhat  obscure 
or  clouded,  still  the  will  may  be  sus- 
tained. "  There  is  no  country  in  the 
world  in  which  the  law  permits  a 
larger  exercise  of  volition  in  the  dis- 
posal of  property  after  death  than  in 
England  "  [and  it  might  be  added  in 
the  United  States,  where  the  English 
law  is  followed].  "But  it  requires 
as  a  condition,  that  this  volition 
siiould  be  that  of  a  mind  of  natural 
capacity,  not  unduly  impaired  by  old 
age,  enfeebled  by  illness  or  tainted 
by  morbid  influence.  Such  a  mind 
the  law  cails  '  a  sound  and  disposing 
mind.'  "  Sir  J.  P.  Wilde  in  Smith  v. 
Tebbett,  L.  R.  1  P.  &  D.  398,  400. 

6.  Wilson  V.  Mitchell,  101  Penn. 
St.  495,  502;  approved  in  110  Penn. 
St.  339,  5  A.  614;  Jackson  v.  Hardin, 
83  Mo.  175;  Delaney  v.  Salina,  34 
Kan.  532,  9  P.  271.  It  is  not  neces- 
sary that  the  testator  should  know 
the  number  and  condition  of  his  rela- 
tives and  their  claims  upon  his 
bounty,  nor  that  he  should  under- 
stand the  reason  for  giving  or  with- 
holding his  bounty  from  any  such 
relatives.  Spratt  v.  Spratt,  76  Mich. 
384,  43  N.  W.  627.  Nor  that  he 
filiould  remember  the  names  of  ab- 
Kcnt  relatives.  Kramer  v.  Wcinert, 
81   Ala.   414,   1   S.   26.     Nor   that  he 


sliould  call  to  mind  every  item  of  his 
property  and  the  value  of  each. 
Reichenbach  v  Ruddach,  127  Penn. 
St.  564,  18  A.  432.  Nor,  of  course, 
that  he  should  understand  the  precise 
legal  efYect  of  the  provisions  he 
makes,  for  on  such  points  the  most 
sane  of  testators  may  fail.  §  80a 
Nor  that  one  shows  no  failure  of 
memory  and  weakening  powers, 
though  instances  on  this  point  might 
be  pertinent  as  proof.  Rishmond's 
Appeal,  59  Conn.  226,  21  Am.  St.  Rep. 
85,  22  A.  82;  Howard  v.  Howard,  72 
S.  E.  133,  112  Va.  566;  45  N.  J.  Eq. 
890,  19  A.  622.  Nor  that  the  testa- 
tor should  comprehend  the  provisions 
of  his  will  in  their  legal  form,  like 
a  skilled  lawj'er;  provided  he  under- 
stood the  simple  elements  of  which 
his  disposition  was  composed  and  the 
will  accorded  substantially  with  his 
wishes.     §  80a. 

It  is  misleading  and  too  sweeping 
to  rule  that  if  a  testator's  mind  was 
'•  unsound  "  he  could  not  make  a  valid 
will.  Durham  v.  Smith,  120  Ind. 
403.  22  N.  E.  333;  Reichenbach  v. 
Ruddach,  127  Penn.  St.  564,  18  A. 
432.  Extreme  physical  sufTering  does 
not  incapacitate.  Delafield  v.  Parish, 
25  N.  Y.  10;  Beemer  v.  Beemer,  96 
N.  E.  1058,  252  111.  452  (crying  out 
with  pain).  See  further,  Benjamin's 
Will,  136  N.  Y.  S.  1070  (a  first  ap- 
popluctic  shock)  ;  Geiger  v.  Bardwell, 


86 


CHAP.    IV.]  IXCAPACITY    OF    INSANE    PERSONS.  §    72 

§  71.  The  Same  Subject:   The  Testator's  Mind  should  act  with- 
out Prompting;  Attention  aroused,  etc. 

In  the  important  case  of  DelafieJd  v.  Parish,  Davies,  J.,  of  the 
New  York  Court  of  Appeals,  after  announcing  the  fairer  rule  of 
testamentary  capacity  above  set  forth,  spoke  of  the  testator's  mind 
as  acting  without  external  pressure  wherever  it  acted  properly. 
"  The  testator  must,"  he  says,  "  have  sufficient  active  memory  to 
collect  in  his  mind,  without  prompting,  the  particulars  or  elements 
of  the  business  to  be  transacted,  and  to  hold  them  in  his  mind  a 
sufficient  length  of  time  to  perceive  at  least  their  obvious  relations 
to  each  other,  and  be  able  to  form  some  rational  judgment  in  re- 
gard to  them ;  "^  and,  we  may  add,  long  enough  to  have  been  able 
to  dictate  or  write  out  his  wishes,  and  to  execute  with  all  due 
formalities. 

Though  one  should  be  in  a  dying  condition  his  capacity  is 
sufficient,  if,  when  his  attention  is  aroused,  his  mind  acts  clearly 
and  with  discriminating  judgment  as  to  the  thing  to  be  done  and 
its  bearings.^ 

§  72.  The  Test  of  Testamentary  Capacity  should  be  referred  to 
the  Particular  Instrument  and  Transaction. 

When  we  come  to  examine  in  detail  the  various  classes  of  cases 
where  sanity  and  the  capacity  to  make  a  will  have  been  in  contro- 
versy, the  general  doctrine,  as  above  stated,  will  more  clearly 
appear  with  its  qualifications.  We  shall  find  tliat  the  criterion  in 
such  cases  is  best  taken  as  sui  generis  and  not  referred  to  the 
standard  of  general  contract  capacity ;  though  unquestionably  the 

99  N.  E.   582.  255  111.  320;    Purcell's  7.  De'afic'd  v.  Parish,   25  N.  Y.   9, 

Estate,    128    P.    932,    164    Cal.    300;  affirming  Parish   v.   Parish,   42   Barb. 

Norton  v.   Clark,  97  N.  E.   1079,   253  274.     And  see  76  Mich.  364,  43  N.  W. 

111.  557,   556    (need  not  hold  all  par-  310;     Hall    v.    Perry,     87    Me.    569; 

ticulars  in  mind  at  the  same  time)  ;  Sayre  v.  Princeton  University,  90   S. 

Weedman's  Estate,  98  N.  E.  956,  254  W.  787,  192  Mo.  95. 

111.   504    (unable  to  manage  his  gen-  8.  Bevelot  v.  Lestrade,  153  111.  625, 

eral    business);    Soveiiing    v.    Smith,  632,  38  N.  E.  1056. 
133  N.  W.  1081,  153  Iowa,  639. 

87 


§    73  LAW    OF    WILLS.  [I'AKT    II. 

habit  and  capacity  of  any  testator  to  actively  transact  his  ordinary 
business  and  make  his  own  contracts  furnish  strong  evidence  of 
the  capacity  at  issue.^  The  vital  question  in  any  such  case  should 
be,  whether  upon  all  the  evidence  the  particular  instrument  pro- 
pounded for  probate  was  or  was  not  under  all  the  circumstances 
the  real  testamentary  disposition  (and  the  last  one,  of  course)  of 
a  mind  neither  deranged  in  producing  it,  nor  operating  under 
stress  of  error,  fraud,  or  undue  infiuence.^  And  to  decide  this 
question  properly  requires  a  careful  view  of  the  particular  case 
in  all  its  bearings  without  too  rigid  an  adherence  to  any  general 
maxims  of  capacity.  The  time  and  place  to  be  regarded  in  deter- 
mining the  validity  of  the  will  should  be  essentially  the  time  and 
place  of  its  execution.^ 

§  73.  Testamentary    Capacity   consistent   with    Execution   of   a 
Will  in  Extremis. 

The  will  of  a  dying  person,  made  very  close  to  the  point  of 
death,  requires  a  careful  scrutiny  of  the  surrounding  circumstances 

9.  The  capacity  of  making  and  tak-  the    distinguished    author    shows    his 

ing   care  of   one's   property   has   been  own  preference  for  bringing  questions 

held  evidence  of  his  testamentary  ca-  of    this    character    to    the   test    of    a 

pacitv   in   a  particular  case,  but  not  simple  inquiry. 

conclusive  evidence.     Gass  v.  Gass,  3  The  common  rules  of  testamentary 

Humph.   278.     "  But   it  is   proper   to  capacity    are    criticised    in    Irish    v. 

remember,"   observes   Judge   Redfield,  Newell,   62   111.    196.      The   best   form 

"that  the  capacity  to  make  and  take  (it  is  here  said)    in  which  the  qnes- 

care  of  property  is  more  satisfactory  tion  of  testamentary  capacity  can  be 

evidence    of     testamentary    capacity,  stated    to    the    jury    is,    whether    the 

than   the  want  of   that  power  would  testator's    mind    and    memory    were 

be  of  want  of  due  testamentary  capa-  sufli:"iently    sound    to   enable    him    to 

city."     1   Redf.  Wills,  127.     The  cir-  know  and  understand  the  business  in 

cumstance     that    the     testatrix     had  which  he  was  engaged  at  the  time  he 

badly   managed  a  large  estate  which  executed   the  will;    and   in   determin- 

she  inherited  so  that  much  of  it  was  ing   the   question   the   competency    of 

wasted    is   no   proof   of   testamentary  the  mind  should  be  judged  of  by  the 

incapacity.      Hall    v.    Hall,    17    Pick.  nature  of  the  act  to  l>e  done,  from  a 

','jT.i.     Sf*  foot  notes,  §§  68,  70.  consideration  of  all  the  circumstances 

1.  In  1  Kodf.  Wills,  131,  132,  after  of   the    case.      See   more   fully,    c.    9,. 

commending  Swinburne's  observations  post. 

upon  this  gcnor.'il  subject  of  capacity,  2.  See  Kerr  v.  Lunsford,  31  W.  Va.. 

S8 


CHAP.  IV.]      INCAPACITY  OF  INSANE  PERSONS.  §  74 

which  bear  upon  capacity  and  free  volition.  It  is  certainly  a  very 
dangerous  period  for  taking  into  mind  for  the  first  time  the  ar- 
rangement of  a  complex  disposition  of  property,  or  even  for  exe- 
cuting intelligently.  But,  after  all,  the  question  of  sanity  or 
insanity,  freedom  of  will  or  coercion  from  without,  is,  as  in  other 
cases,  the  material  one  to  be  decided  upon  all  the  facts.  Where 
the  act  of  execution  in  extremis  relates  not  to  a  will  jusit  framed 
in  the  mind,  but  to  one  which  has  reduced  to  writing  the  results 
of  the  testator's  previous  deliberation  and  direction,  at  an  earlier 
stage  of  illness,  it  deserves  peculiar  indulgence,  when  drafted 
correctly  and  then  executed  in  due  form.^ 

One  may  be  too  weak  physically  to  do  more  than  make  a  mark 
to  the  instrument,  and  yet  be  mentally  competent ;  *  and  one  may 
be  mentally  failing  and  yet  the  will  may  stand  as  tlie  disposition 
framed  when  mentally  strong. 

§  74.  Testamentary  Capacity  consistent  with  Insane  Delusions, 
etc. 

The  better  opinion  in  English  and  American  courts,  as  we 
shall  show  more  fully  hereafter,  holds  that  mental  unsoundness, 
exhibited  in  insane  delusions,  or  what  has  been  loosely  styled 
"  partial  insanity,''  does  not  of  itself  destroy  testamentary  capacity 
necessarily,  unless  the  will  in  question  be  the  direct  offspring  of 

659;   Stewart  v.  Lyons,  47  S.  E.  442.  tating  the  will,  she  had  sufficient  dis- 

See   c.    9,   post.     And   see   Voodiy   v.  cretion  for  that  purpose,  and  at  the 

University  of  Illinois,  95  N.  E.  1034,  time  of  executing  it  was  able  to  recol- 

251  III.  48;   Wetzel  v.  Firebaugh,  95  lect   the   particulars   she  had   so   dic- 

N.  E.  1085,  251  111.  190;   Murphy  v.  tated,  they  might  find  their  verdict  in 

Estate,   116   P.   1004,   43   Mont.   353;  favor  of  the  will;  and  they  found  ac- 

McCoy  V.  Sheehy,  96  N.  E.  1069,  252  cordingly.    Hathorn  v.  King,  8  Mass. 

111.  509.  371,  5  Am.  Dec.  106.     See  also  Brown 

3.  Thus,  in  a  Massachusetts  case  a  v.  Riggin,  94  111.  560;   39  N.  Y.  153; 

testatrix    gave    directions,    at    eleven  Lewis's  Will,   51   Wis.   101,   7  N.   W. 

o'clock  in  the  morning,  how  her  will  829;   16  Oreg.  12  7,  18  P.  6;    130  111. 

should   be   drawn   up.      She   executed  467,   6  L.  R.  A.   167,   22  N.   E.   620; 

the  will  at  six  in  the  evening  and  died  Choate's  Will,  96  N.  Y.  S.  380. 

two   hours  after.     The  jury  were   in-  4.  §  84,  post. 
structed  that  if,  at  the  time  of  die- 

89 


§    76  I^W    OF    WILLS.  [part    II. 

the  delusion.  Where,  in  other  words,  the  delusion  is  altogether 
collateral  to  the  disposition,  the  will  itself  is  not  invalidated;  but 
where  the  delusion  manifestly  operated  upon  the  disposition,  then 
the  will  must  be  declared  void.^  In  general  our  latest  decisions 
show  a  positive  rreluctance  to  set  aside  any  will  on  mere  proof  that 
the  testator  suffered  from  some  dubious  mental  disorder  or  weak- 
ness, provided  it  fairly  appear  that  the  provisions  of  the  will  were 
not  thereby  affected.^ 

§  75.  Modes  of  testing  Capacity,  as  between  Monomania  and 
Habitual  Insanity. 
Where  a  person  is  laboring  under  such  insane  delusion,  or  what 
modem  psycholog}^  terms  monomania,  his  sanity  is  to  be  tested 
by  directing  his  attention  to  the  subject-matter  of  such  delusion; 
but  where  a  person  is  afflicted  with  habitual  insanity  unaccompan- 
ied by  delusions,  his  sanity  is  to  be  tested  by  his  answers  to  ques- 
tions, his  apparent  recollection  of  past  transactions,  and  his  rea- 
soning justly  with  regard  to  them  and  with  regard  to  the  conduct 
of  individuals.^ 

§  76.  Effect  of  Insanity  where  a  Will  and  Codicils  are  executed. 
We  shall  see  that  a  codicil  republishes  a  will,  if  clearly  refer- 
ring to  it,  and  makes  the  will  speak  from  the  date  of  the  codicil, 
and  that  the  same  principle  applies  where  two  or  more  codicils  are 
added ;  the  practical  effect  being  to  incorporate  the  instruments 
as  one  testamentary  disposition.^  Where,  therefore,  a  will  with 
several  codicils  is  contested  on  the  ground  of  mental  incapacity 
in  the  maker,  it  is  not  necessary  to  establish  capacitv  at  the  several 
dates  when  the  instruments  were  executed ;  for  capacity  at  any 
one  date  renders  valid  the  act  then  done  and  all  the  preceding  acta 
republished  by  it.* 

5.  Sop  c.  8,  post,  as  to  monomania           7.  Sir    C.    Cresswell    in   Nichols    v. 
anrl  insane  delusions.  Binns,  1  Sw.  &  Tr.  239. 

6.  Hire   v.    Rice,   50  Mich.   448,   Ifj           8.  See  Part  IV.  post,  as  to  Codicils. 
N.  VV.  r>4r,.  9.  Brown     v.     Riggin,    94    III.    560. 

90 


CHAP.    IV.]  INCAPACITY    OF    INSANE    PERSONS.  §    77 

§  77.  Unjust  and  Foolish  Wills  viewed  v/ith  Suspicion. 

Notwithstanding  the  broad  principle  which  maintains  testa- 
mentary capacity,  it  is  generally  found  in  practice  that  a  will 
which  is  partial  and  unjust  in  its  provisions,  absurd,  or  clearly 
devoid  of  natural  duty  or  affection,  finds  no  hearty  support  in  the 
courts.  Such  wills  are  not,  indeed,  absolutely  void ;  but  their 
execution  may  be  regarded  with  jealousy  and  suspicion.  The 
spiritual  tribunals  in  early  times,  following  the  Roman  law  of 
inofficious  testaments,^  made  little  compunction  of  setting  senseless 
wills  aside,  or,  as  Swinburne  very  strongly  expressed  it,  "  if  there 
be  but  one  word  sounding  to  folly."  ^  Foolish  words,  foolish 
phrases,  cannot  in  these  days,  however,  be  said  to  invalidate  any 
will  at  the  Anglo-Saxon  law;  and  it  is  doubtful  whether  they  ever 
did  more  than  furnish  as  against  such  an  instrument  a  presump- 
tion which  more  positive  evidence  of  intention  ought  by  the  present 
rule  to  fortify.^  We  have  already  seen  that  discrimination  by  will 
against  the  surviving  spouse  or  child  is  to  some  extent  guarded 
against,  and  not  wholly  by  construction ;  *  but  the  English  law  does 
not  follow  the  Roman  in  avoiding  such  wills  peremptorily  as  the 
offspring  of  incapacity,  nor  even  so  as  to  prevent  one  absolutely 
from  disinheriting  his  own  offspring.^  On  the  contrary,  if  a 
testator  be  legally  competent  to  make  his  will,  and  acts  freely,  his 
will  cannot  be  impeached  because  harsh,  unequal,  unreasonable, 
imprudent,   or  unaccountable  in  its  provisions;^  nor  as  being  a 

And   see   Mairs  v.    Freeman,   3   Redf.  3.   1  Redf.  Wills.  121;  1  Hagg.  Ecc. 

{N.  Y.)    181.  214;   Munday  v.  Taylor,  7  Bush,  491. 

1.  By    the   Roman    law   testaments  4.  Supra,  §§   19,  20. 
deficient    in    natural    duty    might   be  5.  2  Bl.  Com.  502,  503. 

set  aside  on  that  ground;    as  where  6.  Boughton  v.  Kniglit,  L.  R.  3  P. 

a  child  of  the  testator  was  left  with-  &  D.  64;  Nicholas  v.  Kershner,  20  W. 

out  provision  and  no  sufficient  reason  Va.  251;  Hubbard  v.  Hubbard.  7  Or. 

was   given    for   the   omission.      2    Bl.  42;    Higgins  v.  Carlton,  28  Md.   118, 

Com.  503;   1  Wms.  Exrs.  38.  92  Am.  Dec.  666;  Munday  v.  Taylor, 

2.  Swinb.  pt.  2,  §  3,  pi.  16.  And  7  Bush,  491;  Davis  v.  Calvert,  1  Gill 
see  Waring  v.  Waring,  6  Moore  P.  &  J.  269;  138  Mo.  197;  Kaufman's 
C.  349.  Estate.    117    Cal.   288,    49    P.    192,    59 

Am.    St.   Rep.   179;    49   S.   C.    159,   61 

91 


77 


LAW  OF  WILLS. 


[part  IL 


foolish  or  Tisionary  disposition ;  "^  nor  even  as  "being  devoid  of 
natural  affection  and  moral  duty.*  It  may  be  that  what  on  the 
face  of  the  will  appears  an  unnatural  disposition,  may  be  reason- 
ably explained.^  And  certainly  the  more  distant  or  unfamiliar 
one's  heirs  and  next  of  kin,  the  less  should  he  be  expected  to  pro- 
vide for  them,  equally  or  at  all,  by  his  testament.^ 

But  in  order  to  sustain  any  unjust,  unnatural,  or  absurd  will, 
which  may  be  contested,  fair  proof  at  least  should  be  afforded  that 
the  testator  was  of  sufficient  capacity  at  the  date  of  execution  to 
comprehend  its  import ;  and  furthermore  the  trier  of  the  case 
should  believe  that  neither  essential  mistake  on  his  part  nor  the 
fraud  nor  undue  influence  of  others  about  him  produced  so  un- 
happy a  disposition.^  And  where  a  person  is  sometimes  sane  and 
sometimes  insane,  and  the  will  appears  crazy,  unjust,  unnatural, 
or  undutiful,  it  may  well  be  presumed  that  he  executed  it  while 
insane  or  under  the  insane  malady,  unless  indeed  they  who  pro- 
pound it  can  prove  to  the  contrary.^     In  fine  a  harsh  and  unnat- 


Am.  St.  Rep.  808,  27  S.  E.  16;  48  N. 
J.  Eq.  566,  25  A.  11;  Gesell  v.  Bnug- 
lier,  60  A.  481,  100  Md.  671;  Town- 
send's  Estate,  105  N.  W.  110,  128 
Iowa,  621;  70  P.  908,  42  Oreg.  345; 
84  N.  Y.  S.  218;  32  W.  Va.  119,  9  S. 
E.  65;  118  111.  199,  8  N.  E.  777,  108 
Cal.  608,  41  P.  70;  148  S.  W.  860, 
244  Mo.  429;  160  S.  W.  1071,  156  Ky. 
342;  133  P.  841,  90  Kan.  285;  63  So. 
409,  133  La.  929. 

7.  Lewis's  Estate,  152  Penn.  St. 
47  7,  25  A.  878;  Martin  v.  Thayer, 
37  W.  Va.  38,  16  S.  E.  489. 

8.  1  Wms.  Exrs.  38,  361;  c.  8,  post  ; 
CofFman  v.  Hendrick,  32  W.  A.  119, 
95  E.  65;  Schneider  v.  Manning,  121 
111.  376,  12  N.  E.  267,  72  Iowa,  515. 

9.  117  Cal.  262,  49  P.  172,  711. 
Deep  religious  conviction,  (hough 
perhap.s    narrow    and    illiberal,    may 


affect  one's  disposition.     50  N.  J.  Eq. 
733,  26  A.  706. 

1.  Motives  for  disinheriting  kind- 
red, and  collateral  kindred  more  es- 
pecially, may  readily  appear  in  proof. 
See  Smith  v.  James,  72  Iowa,  515,  34 
N".  W.  309.  The  test  of  "  unnatural  " 
is  referable  to  the  testator's  own 
nature  and  to  what  might  be  expected 
of  him.  Morgan's  Estate,  219  Penn. 
355,  68  A.  935.  See  further,  Bens- 
berg  V.  Washington  University,  158 
S.  W.  330,  251  Mo.  641;  29  P.  778, 
164   Cal.   525;    §    185   post. 

2.  Baker  v.  Batt,  2  Moore  P.  C. 
317;  Brogden  v.  Brown,  2  Add.  449; 
Vrccland  v.  McClelland.  1  Bradf. 
394 ;  Montefiore  v.  Montefiore,  2  Add. 
361;  1  Redf.  Wills,  121,  122;  1  Wms. 
Exrs.  38,  361;  Estcrbrook  v.  Gard- 
ner, 2  Drm.    (N.  Y.)    543. 

3.  Swinb.  pt.  2,  §  3,  pi.  15;  1  Ilagg. 


92 


CHAP.    IV.]  IXCAPACITY   01''    INSANE    PERSONS.  §    78 

ural  disposition  by  the  will  in  question,  is  a  circumstance  which 
tends  to  discredit  the  maker's  testamentary  capacity.^  And  at  all 
events,  the  construction  of  such  a  will  after  its  admission  to  pro- 
bate, may  often  in  the  application  of  general  rules,  defea.t  one's 
ill  intention.^^ 

§  78.  The  Just  Will  of  an  Insane  Person  considered. 

On  the  other  hand,  one  who  is  wholly  deranged  in  mind  so  as  to 
be  in  a  genuine  sense  insane  cannot  while  in  that  condition,  nor 
while  under  undue  constraint,  make  a  valid  will,  however  just, 
natural,  and  reasonable  might  appear  its  provisions.^  Yet  the 
circumstance  that  the  testator,  unaided  by  others,  has  made  a 
judicious  will  containing  nothing  ''  sounding  in  folly  "  nor  failing 
in  natural  affection  and  duty,  bears  certainly  very  strongly  in 
favor  of  sustaining  it;  and  we  find  courts  constantly  disposed  to 
nphold  such  a  will,  even  in  the  case  of  a  person  habitually  insane 
or  tending  to  imbecility  or  subject  to  insane  delusions,  where 
there  is  no  proof  to  repel  the  theory  that  it  was  made  during  some 
lucid  interval  or  before  the  mental  powers  had  reached  the  final 
state  of  decay,  or  free  from  the  delusion.®  And  aside  from  the 
claims  of  what  are  called  the  natural  objects  of  one's  bounty  a 

214;    1   Wms.   Exrs.   37;    Sevening   v.  6.  Cartwright     v.      Cartwrightj      1 

Smith,    133   N.    W.    1081,    153    Iowa,  Phillim.  90;   Kingsbury  v.  Wbitaker, 

039.      And   see   Boughton   v.   Knight,  32  La.  Ann.  1055,  36  Am.  Rep.  278; 

L.   R.   3   P.   &  D.  64;   c.  8  on  mono-  Wilson    v.    Mitchell,    101    Penn.    St. 

mania,  post;  Van  Alst  v.  Hunter,   5  495;  Kempsey  v.  McGinniss,  21  Mich. 

Johns.  Ch.  148,  158;  Smith  v.  Smith,  123;    Peck  v.   Carey,  27  N.  Y.   9,  84 

75  Ga.  477.  Am.    Dec.    220;    Gombault   v.   Public 

4.  See  Lamb  v.  Lamb,  105  Ind.  456,  Administrator,  4  Bradf.  (N.  Y.)  226; 
5  N.  E.  171;  180  111.  65,  300,  54  N.  Goble  v.  Grant,  2  Green,  Ch.  (N.  J.) 
E.  154,  321;  Walls  v.  Walls,  99  S.  629;  Von  de  Veld  v.  Judy,  143  Mo. 
W.  969;  Hardenburgh  v.  Harden-  348;  Silverthorn's  Will,  68  Wis.  372, 
burgh,  109  N.  W.  1014,  133  Iowa,  1;  32  K  W.  287  (a  strong  instance); 
Blackman  v.  Andrews,  150  Mich.  322,  78  N.  E.  591,  222  111.  276,  113  Am. 
144  N.  W.  218.  St.  Rep.  400;  1  Wms.  Exrs.  361,  Per- 

4a.  See  Part  VI.  post.  kins's   note;    Buckman's   Will,   85   A. 

5.  Potts  V.  House,  6  Geo.  324;  Har-  246,  80  N.  J,  Eq.  556  (testator  94 
per  V.  Harper,  1  N.  Y.  Supr.  351.  years  old). 

93 


§  80a  LAW  OF  WILLS.  [part  il 

will  made  in  favor  of  a  person  for  whom  one  has  a  strong  and  well- 
founded  aifection,  cannot  he  called  unnatural.^ 

§  79.  Manner  of  making  and  executing  the  Will. 

As  bearing  upon  issues  of  testamentary  capacity,  the  manner 
of  making  and  executing  the  will  in  question  is  an  important 
consideration,  as  well  as  the  character  of  the  will  itself.  Thus^ 
if  the  will  be  written  out  clearly  by  the  testator  himself  which 
manifests  intelligence  on  its  face,  this  is  a  strong  though  not 
conclusive  circumstance;  and  so  too,  where  the  testator  took  de- 
cidedly the  initiative  in  having  the  will  prepared  and  executed, 
instead  of  yielding  or  confiding  the  matter,  as  it  would  appear,  to- 
those  about  him.^ 

§  80.  Testamentary  Capacity  as  contrasted  in  Complex  and  Sim- 
ple Estates. 

It  is  sometimes  stated  that  the  same  degree  of  mental  capacity 
is  not  required  in  making  a  will  of  a  small  and  simple  property 
as  of  a  large,  diversified,  and  complicated  estate.^  But  such  a 
maxim  ought  duly  to  regard  the  particular  testator,  whether  a  per- 
son of  business  habits  and  accustomed  to  large  pecuniary  dealings, 
while  in  normal  condition,  or  the  reverse;^  the  individual  being, 
so  to  speak,  compared  with  himself. 

§  80a.  Mistake  as  to  Legal  Effect    of   Will,    etc.,    does   not   in- 
capacitate. 
The  testator  need  not  have  correctly  comprehended  the  legal 
provisions  or  legal  effect  of  his  will  in  this  connection.     That  he 
wholly  mistakes  the  extent  of  his  estate  or  what  his  testament 

7.  See  RufFino's  Estate,  116  C'al.  ention  is  not  conclusive.  Bever  v. 
204,  48  P.  127;  French  v.  French,  74  Spangler,  93  Iowa,  576,  61  N.  W. 
N.  E.  403,  215  111.  470.  1072.     And  see  §  255,  post. 

8.  See  e.g.  Cartwright  v.  Cart-  9.  Sheldon  v.  Dow,  1  Dem.  (N.  Y.) 
Wright,  1  Phillim.  90,  a  strong  in-  503,  511.  And  see  Campbell  v.  Camp- 
Btance  in  point,  where  a  will  was  es-  lioll.  130  111.  467. 

tahliwhcd  as  made  during  a  Incid    in-  1.   See  Delafield  v.  Parish,  25  N".  Y. 

terval.     Bui  llie  circumstance  of  e.xc-       'J7,  commented  upon  supra,  §  70. 

94 


CHAP.    IV.]  INCAPACITY   OF    INSANE    PERSONS.  §    81 

will   actually   accomplish   does   not   of   itself   import   mental    in- 
capacity.^ 

§  81.  Will  of  one  under  Guardianship  not  necessarily  Void. 

The  test  of  testamentary  incapacity  being  in  a  proper  sense 
sui  generis,  it  does  not  follow  that  the  will  of  one  under  guardian- 
ship is  necessarily  void.  It  would  be  out  of  place  to  set  forth  hero 
the  general  scheme  of  practice  which  prevails  in  England  and  the 
United  States  for  committing  those  who,  from  mental  unsoundness' 
or  habitual  drunkeness,  or  as  spendthrifts,  are  adjudged  incapable 
of  managing  their  own  estates,  to  some  guardian  or  committee. 
Chancery  takes  the  essential  jurisdiction  of  such  cases  in  England, 
while  in  this  country  it  falls  rather  to  the  county  probate  tribunals, 
under  statutes  which  vary  in  the  details  of  jurisdiction  and  process. 
Often  does  the  court  put  a  person  under  a  commission  of  lunacy  or 
guardianship  where  he  cannot  be  regarded  as  absolutely  insane, 
or  if  insane,  where  he  is  only  temporarily  so ;  the  law  having,  as 
the  main  object  in  view,  to  deprive  such  a  party  of  managing  his 
own  estate  because  he  is  incompetent  to  have  the  care  of  it  and 
would  be  likely  to  squander  it.  The  point  here  at  issue  is  there- 
fore the  general  rather  than  the  partial  or  particular  incapacity 
of  the  person  for  dealing  with  his  property;  and  one  might  even, 
while  under  such  a  guardianship,  make  a  valid  and  intelligent 
will  which  deserved  to  be  upheld,  under  the  comprehensive  rule  of 
testamentary  capacity  already  set:  forth.*  Not  only  would  it  deserve 
to  be  upheld  because  at  the  date  of  execution  the  ward  might  have 
been  entitled  to  his  discharge  from  guardianship,  but  because, 
while  an  incompetent  manager,  he  might  not,  on  the  whole,  have 
been  an  incompetent  disposer  by  testament  of  his  property.  Eor 
we  know  tJiat  one  may  have  intelligently  arranged  where  all 
shall  go  at  his  death  and  yet  be  himself  sensible,,  as  well  as  his 

2.  Holmes  v.  Campbell  Co'lege,  125  3.  See    1    Redf.    Wills,    123;    Sher- 

P.  25,  87  Kan.  597.  41  L.  R.  A.    (N.  wood    v.    Sanderson,     12    Ves.    445; 

S.)    1126;    Ditton    v.   Hart,   93   N.   E.  Schoul.    Dom.   Eel.    §§    293,   304,    305. 

961.  175  Ind.  181;  21  Mich.  141,  142.  4.  Supra,  §  68. 


102  Ga.  490,  501,  31  S.  E.  100. 


95 


§    81  LAW  OF   WILLS.  [pART    II. 

relatives,  that  he  grows  more  and  more  unfit  to  take  care  of  his 
property;  we  know  that  one  may  have  a  lucid  interval  or  even  be 
fully  sane  once  more  and  yet  fail  to  demand  that  the  management 
be  restored  to  him.  Guardianship  under  our  local  codes,  moreover, 
is  often  granted  upon  allegations  of  intemperate  or  spendthrift 
habits,  rather  than  for  mental  unsoundness. 

But  in  general  where  a  person  is  placed  under  a  guardianship 
for  positive  insanity,  the  investigation  upon  which  the  appoint- 
ment was  based  is  such  as  to  establish  a  prima  facie  case  that  he 
vras,  at  that  date  at  least,  non  compos  and  incapable  of  making  a 
valid  will.  And  the  fact  of  such  an  appointment,  as  well  as  of  the 
testator's  continuance  under  the  guardianship,  is  doubtless  a  very 
important  one  whenever  one's  will  is  contested.  But  such  evidence 
of  testamentary  incapacity  is  prima  facie  only  and  open  to  ex- 
planation by  other  proof.''  Such  a  person  may  make  a  valid  will 
if  he  be  in  fact  of  sound  mind  at  the  time  of  its  execution.^  ]^or 
is  the  character  of  the  appointment  thus  made  invariably  such 
as  adjudges  one  an  insane  person  at  all ;  and  if  the  record  falls 
short  of  establishing  that  sanity  was  put  at  issue  in  the  proceed- 
ings for  gTiardianship,  not  even  a  prima  facie  case  of  testamentary 
incapacity  is  thus  made  out.^ 

5.  Chamberlayne  Evid.  §  2638;  1  Titlow  v.  Titlow,  54  Penn.  St.  216; 
Wms.  Exrs.  38  &  Perkins's  note;  10  Breed  v.  Pratt.  18  Pick.  115;  Stone 
Moore  P.  C.  244;  Hamilton  v.  Hamil-  v.  Damon,  12  :Mas3.  4S8;  Rice  v.  Rice, 
ton,  10  R.  I.  538;  Breed  v.  Pratt,  18  50  Mich.  448,  15  N.  W.  545;  57  Cal. 
Pick.  115;  Lucas  v.  Par.sons,  27  Geo.  529;  Slinger's  Will,  72  Wis.  22,  37 
593;  Robinson  v.  Robinson,  39  Vt.  X.  W.  545.  And  so  with  the  fact  of 
267.  See  Cowdry's  Will,  60  A.  141,  being  in  an  insane  asylum.  Draper's 
77  Vt.  359   (statute)  ;   102  Me.  72,  60  Estate,  64  A.  520.  215  Penn.  314. 

A.  215;  King  v.  Gilson,  90  S.  W.  367,  7.  This  holds  true  of  a  probate  or- 

191  Mo.   307.     An   inquest  of  lunacy  der    adjudging   a   man   "  incompetent 

is    conclusive    against    a    subsequent  to    have    the    care    of   his    property." 

testamentary    disposition    only    when  Rice  v.  Rice,  50  Mich.  448,  15  N.  W. 

made  so  by  statute.    Norton  v.  Clark,  545.     But  such  an  order  may  be  put 

2.j3  111.  558,  566.  97  N.  E.  1079.  in   evidence  as  bearing  on  the  testa- 

6.  Cooke  V.  Cholmondely.  2  Mac.  &  tor's   condition.     lb. 

O.   22 ;    Bannatyne   v.   Bannatyne,   16  If   the   inquisition    for   lunacy   vras 

Jur.  864;  1  Redf.  Wills,  122,  133.  134;       in  fact  ex  parte,  the  value  of  the  rec- 

96 


CHAP.    IV.]  INCAPACITY   OF   INSANE    PERSONS.  §    83 

Nor,  on  the  other  hand,  does  a  judgment  which  declared  a 
person  of  sound  mind  and  removed  a  guardian  who  had  been 
placed  over  him,  conclusively  prove  him  of  testamentary  capacity 
in  issues  of  prohate,  like  the  present;  ^  though  such  evidence  might 
carry  much  weight. 

§  82.  The  Same  Subject:   Adjudication  of  Idiocy. 

An  adjudication  of  idiocy,  however,  imports  so  base  a  mental 
condition  that  incapacity  to  make  a  will  ought  from  this  circum- 
stance to  be  more  readily  inferred  than  where  one  is  placed  under 
the  usual  guardianship  as  a  lunatic  or  one  generally  insane ;  though 
it  still  holds  true  that  such  collateral  adjudication,  especially  if 
made  long  after  the  will  was  executed,  is  not  conclusive  against 
a  probate  of  the  instrument  after  the  testator's  death.' 

§  83.  Sound  and  Disposing   Mind  and  Memory. 

The  word  "  memory  "  is  much  used  in  connection  with  this 
subject  of  testamentary  capacity,  coupled  with  "  mind."  A  dis- 
posing memory  is  understood  to  be  one  which  is  capable  of  re- 
calling to  the  testator's  own  view  all  his  estate  and  all  the  persons 
who  naturally  and  properly  would  partake  under  his  disposition 
of  it.^  Lord  Coke  mentions  the  necessity  of  a  "  disposing  mem- 
ory "  or  a  "  safe  and  perfect  memory  " ;  ^  and  the  time-honored 
phrase,  which  asserts  the  testator's  confidence  in  his  own  mental 
capacity,  is,  as  wills  are  commonly  drawn,  "  being  of  sound  and 

ord  is  not  great  in  an  issue  of  will  or  C.    282;    Marsh   v.   Tyrrell,    2    Hagg. 

no  will.     Bannatyne  v.  Bannatyne,  14  122;   Den  v.  Johnson,  2   South.  454; 

E.    L.    &    Eq.    581.      And    see    as    to  1  Redf.  Wills,  123.     "  It  is  not  neces- 

guardianship   for   drunken   or   spend-  sary  that  he  collect  all  these  in  one 

thrift    habits,     Lewis     v.    Jones,     50  review.     If  he  understands   in  detail 

Barb.    645 ;    Leckey    v.    Cunningham,  all  that  he  is  about,  and  chooses  with 

56  Penn.  St.  370.  understanding  and  reason  between  one 

8.  Fenton's  Will,  97  Iowa,  192,  66  disposition  and  another,  it  is  suffici- 
N.  W.  99.  ent  for  the  making  of  a  will."     Wil- 

9.  Townsend  v.  Bogart,  5  Redf.  (N.  son  v.  Mitchell,  101  Penn.  St.  495, 
Y.)  93.  502. 

1.  Harwood   v.    Baker,    3  Moore   P.  2.  6  Co.  Rep.  23. 

7i  97 


g    84  I'AW  OF  WILLS.  [part    II. 

disposing  mind  and  memory  " ;  coupled,  perhaps  with  the  prefix 
"  being  in  sound  [or  sufficient]  bodily  health.^ 

The  issue  is  sometimes  stated  as  one  of  "  sound  mind,  memory^ 
and  understanding."  In  a  broad  sense,  however,  the  phrase 
"  sound  mind  "  covers  the  whole  subject/ 

Mere  decay  or  feebleness  of  memory,  or  absent-mindedness, 
ought  not  to  invalidate  a  will,  unless  amounting,  under  our  general 
rule,  to  a  mental  incapacity  to  collect  the  particulars  essential  to 
a  just  testamentary  disposition.^ 

§  84.  Testamentary  Capacity  not  dependent  upon  Sound  Health. 

But  though  one's  will  may  allege  that  the  testator  is  of  sound 
health,  neither  the  statement  nor  the  condition  is  essential  to  the 
validity  of  the  instrument.  In  other  words,  testamentary  capacity 
is  not  conditional  upon  the  possession  of  sound  health  or  of  great 
vigor  or  activity,  whether  intellectual  or  physical.  "  Incapacity," 
it  is  said,  "  cannot  be  inferred  from  a  feeble  condition  of  mind 
or  body.  Such  a  rule  would  be  dangerous  in  the  extreme."  If, 
therefore,  the  will  in  question  be  the  free  act  of  the  testator,  within 

3.  See  Forms  of  Wills  in  Appendix.  may  be  said  to  be  one  which  is  capa- 

4.  "Emphasis,"  observes  an  English  ble  of  presenting  to  the  testator  all 
judge  in  1873,  "  is  laid  upon  two  par-  his  property,  and  all  the  persons  who 
ticular  functions  of  the  mind  which  come  reasonably  within  the  range  of 
must  be  sound  in  order  to  create  a  his  bounty."  Benoist  v.  Murrin,  58 
capacity  for  the  making  a  will ;  there  Mo.  307,  322.  See  also  4  Wash.  C.  C. 
must  be  a  memory  to  recall  the  267.  "  Sufficient  active  memory  to 
several  persons  who  may  be  fitting  collect  in  his  mind,  without  prompt- 
objects  of  the  testator's  bounty,  and  ing.  the  particulars."  etc.  Hall  v. 
an  understanding  to  comprehend  their  Perry,  87  Me.  569,  572,  47  Am.  St. 
relationsliip  to  himself  and  their  Rep.  532,  33  A.  160.  And  see  §  71. 
claim  upon  him.  But  for  convenience  5.  See  Taylor  v.  Pegram,  151  111. 
the  phrase  'sound  mind'  may  be  106;  Douglas's  Estate,  162  Penn.  St. 
adopted."  Bougliton  v.  Knight,  L.  567,  26  L.  R.  A.  504;  Chappell  v. 
R.  3  P.  &  D.  64,  66,  per  Sir  J.  Han-  Trent,  90  Va.  849,  198.  E.  319;  37 
ncii.  And  see  Smitli  v.  Tebbitt,  L.  W.  Va.  54.  16  S.  E.  489;  Southworth 
j;.  1   I'.  &  D.  3;(S,  400.  V.  Southworth,  73  S.  W.  129,  173  Mo.. 

"A     disponing     mind     and     mtmory       50.  §§  70,  71. 

98 


CHAP.  IV.]      INCAPACITY  OF  INSANE  PERSONS.    n         §  85 

the  scope  of  tlie  rule  for  testamentary  capacity  already  stated,  the 
disposition  of  one  in  impaired  health  should  stand.^ 

§  85.  Classification  of  Insanity;  the  Various  Kinds. 

Insane  persons  are  thus  classified  by  Lord  Coke,  after  the  rude 
and  inexact  method  of  mental  analysis  which  obtained  in  his 
times:  (1)  An  idiot  or  a  fool  natural;  (2)  He  who  was  of  good 
and  perfect  memory,  and  by  the  visitation  of  God  hath  lost  the 
same;  (3)  The  lunatic,  who  enjoys  lucid  intervals,  who  some- 
times is  of  good  and  perfect  memory,  and  some  other  times  non 
compos  mentis.  (4)  He  that  is  so  by  his  own  act,  as  a  drunkard. 
The  insane  person  was  in  general  styled  non  compos  m,eniis.'' 
Blackstone  a  century  ago  used  less  pains  at  precise  expression. 
"  Madmen,"  he  says,  "or  otherwise  non  compotes,  idiots  or  natural 
fools,  persons  grown  childish  by  reason  of  old  age  or  distemper, 
such  as  have  their  senses  besotted  with  drunkenness — all  these  are 
incapable,  by  reason  of  mental  disability,  to  make  any  will  so  long 
as  such  disability  lasts.  To  this  class,  also,  may  be  referred  such 
persons  as  are  born  deaf,  blind,  and  dumb;  who,  as  they  have 
always  wanted  the  common  inlets  of  understanding,  are  incapable 
of  having  animwn  testandi,  and  their  testaments  are  therefore 
void."  « 

Idiots  and  lunatics  were  the  two  classes  of  persons  to  whom  the 

6.  See  Horn  v.   Pulman,   73  N.   Y.  that  he  will  recover,   and   frequently 

276 ;   CJornwell  v.  Ricker,  2  Demarest,  delirious    besides,    may    yet    make    a 

354;    Wilson   v.   Mitchell,    101    Penn.  valid    will.      6    Dera.    123;    Ayres    v, 

St.    495;    162    Penn.    St.    567,    29    A.  Ayres,  43  N.   J.  Eq.   565,   12   A.   621. 

715;  §  73,  supra;  Kirsher  v.  Kirsher,  And  so  may  one  who   is   dying  of  a 

94   N.   W.    846,    120   Iowa,    337    (ap-  cancer,    and     emaciated,    weak,    and 

polexy)  ;  Stall  v.  Stall,  96  N.  W.  196,  irritable.      Stoutenburgh    v.   Hopkins, 

69  Neb.   653;   Graham  v.  Deuterman,  43   X.   J.   Eq.   577.     And  see  Kerr  v. 

75  N.  E.  480,  217  111.  235,  c.  7,  post.  Lunsford,  31  W.  Va.  659,  8  S.  E.  493 ; 

"  Sufficiently    sound    health,"      setms  93  N.  Y.  S.  565 ;   Oilman  v.  Ayer,  52 

the  expression  for  one's  will  to  state,  A.   1131,   63  N.  J.   Eq.   806;    Gihon's 

rather  than  "  sound  health."  Will,  57  N.  E.  1110,  163  N.  Y.  595. 

One   who   is   in   the  last   stages   of  7.  4  Co.  Rep.  123. 

consumption   and  under  the   delusion  8.  2  Bl.  Com.  497. 

99 


§    86  LAW  OF   WILLS.  [pART    IL 

law  formerly  extended  its  protection  on  the  score  of  mental  un- 
soundness, as  the  classes  most  plainly  told  apart;  for  the  former 
never  had  reason,  while  the  latter  had  lost  the  reason  they  once 
l^ossessed.  But  it  was  gradually  found  that  many  more  required 
such  protection,  whose  symptoms  of  discrder,  though  mildly 
manifested  without  the  violence  or  notable  derangement  or  inter- 
mittent brightness  which  attended  lunacy,  had  yet  equal  claim  to 
be  regarded  as  implying  a  loss,  not  the  natural  denial,  of  reason. 
A  decline  of  intellectual  power,  of  interest  in  their  usual  pursuits, 
of  the  capacity  for  comprehending  their  relations  to  persons  and 
tilings,  marked  this  phase  of  mental  unsoundness.  Instead,  there- 
fore, of  giving  the  word  "  lunacy  "  a  scope  large  enough  to  include 
them,  the  modern  disposition  is  to  apply  specific  terms  to  describe 
various  disorders  whose  range  of  reason  is  wider  than  that  of  the 
utterly  imbecile  and  brute-born  idiot.  Monomaniacs  or  tliose 
having  insane  delusions,  or,  as  it  is  somewhat  inaccurately  said, 
who  are  only  partially  insane,  are  examples  of  this  milder  type 
of  insanity ;  those,  again,  who  are  affected  with  a  delirium  like 
that  produced  by  drunkenness,  sufficient  to  drown  the  reason  for 
the  time  being;  persons  grown  childish  from  decay  of  the  mental 
powers  by  reason  of  old  age,  whose  affliction  is  styled  senile  de- 
mentia; and  so  on.  These  are  the  kinds  of  insanity  with  which 
our  courts  have  chiefly  to  deal  in  practice  when  considering  the 
question  of  testamentary  capacity  in  any  individual  case.  But, 
after  all,  the  manifestations  of  insanity  are  subject  to  so  great 
variation  that  we  may  not  easily  define  them,  nor  the  word 
"  insanity  "  itself. 


§  86.  The  Same  Subject:   Insanity  Defined. 

Insanity,  the  word  humanely  used  at  the  present  day  to  desig- 
nate all  mental  irn]>airmcnts  inconsistent  with  soundness  of  mind, 
is  more  readily  conclnded  from  the  symptoms  in  a  given  case  than 
defined  on  abstract  principh-.  High  legal  and  medical  authority 
defines   it   as   the   prolonged    departure,   without   adequate   cause, 

100 


CHAP.    IV.]  INCAPACITY    OF    IXSAXE    PERSONS.  §    ^^ 

from  the  states  of  feeling  and  modes  of  thinking  usual  to  the  in- 
dividual in  health.^ 

Insanity  may  involve  bodily  diseases,  but  the  disease  primary 
and  predominant,  where  it  exists,  or  the  congenital  defect,  has  its 
seat  in  the  brain. 

§  87.  Psychology  of  Mental  Unsoundness,  and  Unity  of  the  Dis- 
order. 

The  foregoing  definition  of  insanity  is  essentially  one  of  med- 
ical jurisprudence,  and  medical  science  at  the  present  stage  of  its 
progress  has  confessed  itself  unable  to  frame  a  more  exact  one. 
Psychologists  have  not  classified  mental  unsoundness  with  success ; 
for  the  same  names  have  been  used  1x)  denote  quite  distinct  phe- 
nomena, according  to  the  standpoint  of  observation ;  and,  moreover, 
the  insane  delusion,  or  the  symptom,  has  been  too  long  treated  by 
them  as  a  substantive  disease,  indicating  that  the  mind  may  be 
unsound  in  some  factor  but  sound  in  all  the  others.^ 

The  fundamental  functions  or  properties  of  the  mind  are  stated 
as  these  three :  feeling,  will  or  volition,  and  thought  or  intellect ; 
this  last  including  the  powers  known  as  perception,  memory,  con- 
ception, abstraction,  reason,  judgment,  and  imagination.^  These 
three  functions  are  inter-dependent,  and  aff"ected  together  by  men- 
tal disease ;  so  that  instead  of  considering  numerous  insanities  to 
which  this  division  or  subdivision  might  give  rise,  we  should 
consider  that  insanity,  while  flitting,  perhaps,  from  function  to 
function,  or  spreading  over  the  mind,  is  but  one  disease  capable 
of  manifesting  itself  in  various  ways.^ 

9.  Bouv.  Diet.  "  Insanity;  "  3  Curt.  disintegration,  and  to  treat  the  mind 

Ecc.   671.  as  a  unit,  which,  whenever  diseased, 

1.  "  It    is    the    latter    tendency,    in  however  distinctively  the  disease  may 

fact,"  observes  a  sound  writer  on  this  manifest    itself,     is     diseased     as     a 

subject,    "  that    has,    more    than    all  whole.     1  Wharton  &  Stille  Med.  Jur. 

other  causes,  tended  to  lower  the  au-  §   305. 

thority      of      psychology      with      the  2.  Bain  Mental  and  Moral  Science; 

courts."      And    he    proceeds    to    state  Sir  Wm.  Hamilton  Metaphysics, 

that  the  weight  of  psychological  opin-  3.  1  Wharton  &  Stille,  Med.  Jur.  § 

ion  is  now  to  discard  this  process  of  308.     It  follows  that  the  doctrine  of 

101 


§     89  LAW  OF   WILLS.  [pART    II. 

§  88.  Courts   apply   Practical   Tests   without   attempting   Exact 
Classification. 

The  various  grades  and  types  of  insanity,  however  interesting 
they  may  be  from  in  a  philosophicial  point  of  view,  receive,  on  the 
whole,  no  very  close  practical  consideration  from  our  judges. 
Courts  attempt  no  exact  classification  of  the  subject.  In  crim- 
inal cases  they  are  governed  by  their  tests  of  responsibility;  and 
in  civil  cases  by  the  amount  of  capacity  shown  in  connection  with 
the  transaction  in  question.  The  whole  proof  in  a  given  case 
(aided,  perhaps,  but  not  guided,  by  the  opinion  of  voluntary  med- 
ical experts)  is  laid  usually  before  a  jury,  to  determine,  by  weigh- 
ing it  after  a  common-sense  fashion,  whether  (supposing  the  crime 
to  have  been  committed  or  the  transaction  performed  by  him)  the 
person  was  at  the  time  and  in  the  act  responsible  or  irresponsible, 
mentally  capable  or  mentally  incapable. 

§  89.  Testamentary  Capacity  as  applied  in  Tests  of  Mental  Un- 
soundness or  Coercion, 

Some  have  dwelt  upon  the  expression  "  testamentary  capacity  " 
as  though  the  test  of  mental  soundness  and  unsoundness  were  an 
abstract  one.  The  incapacity  of  infants,  married  women,  aliens, 
and  the  like  may,  where  the  law  recognizes  its  existence,  be  pro- 
nounced abstract  or  of  general  and  absolute  force;  but  whenever 
an  issue  of  insanity  or  undue  influence  is  presented,  the  question 
appears  concrete  rather,  devisavit  vel  non;  was  that  will  the  free 
and  intelligent  product  of  the  testator's  mind  or  not.  One  might, 
in  a  certain  sense,  be  thought  insane,  and  yet  the  mil  should  stand 
as  a  disposition  untainted  by  his  insanity ;  ho  might,  on  the  other 
hand,  be  sane,  and  yet  the  will  should  fail,  because  he  did  not  make 
it  as  a  free  agent.  "  Testamentary  capacity  "  is  not,  perhaps,  a 
happy  term  to  use  here,  but  out  of  deference  to  the  courts  we  may 

'■  moral  insanity "  as  something  accountability,  and  yot  render  him 
wliicli  may  co-exist  with  mental  san-  capable  of  sound  conduct  in  affairs, 
ity,  HO  as  to  relieve  one  of  criminal       is  untenable.    lb.  §  531  et  seq. 

102 


CHAP.    IV.]  INCAPACITY   OF    INSANE    PERSONS.  §    89a 

still  employ  it;  with  this  qualification,  that,  excepting  possibly  in 
brutish  types  where  reason  is  a  blank,  no  ideal  standard  of  capacity 
is  offered  for  guaging  the  brain,  but  court  or  jury  must  determine 
whether  a  weak  or  diseased  mind  made  in  the  given  instance  a 
normal  disposition  by  testament  or  not.  Even  here,  nevertheless, 
a  general  comparison  of  the  various  symptoms  and  forms  of  mental 
derangement  which  are  exhibited  in  our  testamentary  causes  will 
greatly  assist  the  investigation  and  guide  to  a  just  conclusion. 

§  89a.  Each  Case  should  be  tested  by  its  own  Facts,  etc. 

On  the  whole  it  may  be  asserted  that  there  is  no  particular  de- 
gree of  mental  acumen  to  serve  as  the  standard  of  testamentary 
capacity ;  and  that  there  is  no  precise  formula  in  which  judges 
are  bound  in  that  respect  to  charge  a  jury.  Each  case  should  be 
fairly  decided  upon  its  own  facts  and  circumstances,  and  the  rule 
of  law  is  best  stated  after  the  approved  general  expression  set  forth 
already.* 

4.  Supra,   §   68:    Wampler   v.  Har-  259   111.   613    (special   instruction   de- 

rell.  72  S.  E.  135,  112  Va.  635;  Law-  fining      mental      soundness       disap- 

rence   v.    Steele,    66   N.   C.   584.      See  proved). 
Brainard  v.  Brainard,  103  N.  E.  45, 

103 


§    90  LAW  OF  WILLS.  [pAET    II. 


CHAPTER  V. 

INCAPACITY  OF  IDIOTS^,  IMBECILES,  AND  PERSONS  DEAP^  I>UMB^  AND 

BLIND. 

§  90.  Idiots  are  Incapable;  What  is  Idiocy. 

Idiocy,  which  is  insanity  in  its  lowest  type,  since  it  presupposes 
a  want  of  understanding  from  nativity,  and  allies  its  subject  to 
the  brute  creation,  is  utterly  inconsistent  with  the  power  to  dispose 
by  will,  or  indeed  with  mental  capacity  of  any  kind,  or  even  in 
extreme  cases  with  accountability  for  crime.  We  may  not  well 
define  this  condition;  but  an  idiot  is  recognized  by  all  intelligent 
persons  who  deal  with  him,  and  is  a  fit  subject  for  the  asylum, 
unless  his  own  family  will  provide  tenderly  for  his  welfare  and 
keep  him  secluded  from  society.  Medical  classification  regards 
idiots  of  the  lowest  class  as  mere  organisms,  masses  of  flesh  and 
bone  in  human  shape,  in  which  the  brain  and  nerv^ous  system  can- 
not control  the  muscles,  having  neither  the  power  of  locomotion 
nor  speech,  and  whose  mental  faculties  are  buried  in  darkness; 
fools,  a  higher  class  of  idiots,  who  can  partially  command  the 
voluntary  muscles,  and  consequently  have  a  considerable  power  of 
locomotion  and  animal  action  and  imperfect  speech,  and  whose 
reason  glimmers  faintly;  and  simpletons  or  the  highest  class  of 
idiots,  in  whom  the  harmony  between  the  nervous  and  muscular 
system  is  so  nearly  perfect  that  the  powers  of  locomotion  and  ani- 
mal action  are  normal,  and  who  have  reason  enough  for  their 
simple  individual  guidance,  but  not  for  their  social  relations.'^ 

Idiocy  results  either  from  congenital  defect  or  from  some 
obstacle  to  the  normal  development  of  the  faculties  in  childhood, 
and  is  generally  manifested  by  malformation  of  the  head  and 
brain,   and   a   repulsive  expression.     Unfortunates  of  this   class 

5.  Report  of  Dr.  ITowo  to  the  Maa- 
narliUHfitts  lo^'i.slalure,  cited  in  1 
Rtdf.   WillB,  01. 

104 


CHAP,    v.]  INCAPACITT  OF  IDIOTS^  ETC.  §    91 

have  been  taught  decent  and  proper  habits,  and  may  even  be 
trained  to  some  degree  of  efficiency  in  rude  industrial  pursuits ; 
but  education  has  never  fitted  them  for  unpainful  companionship 
with  the  intelligent  part  of  mankind,  for  whose  society  animals 
like  the  dog  or  horse,  from  their  lower  but  positive  plane  of  intel- 
ligence, are  naturally  so  well  fitted^  while  here  the  hidden  pro- 
pensities of  the  human  but  unnatural  brute  suggest  a  constant 
source  of  danger. 

§  91.  The  Same  Subject. 

Some  of  our  earlier  text  writers,  whose  observations  of  mental 
phenomena  could  not  have  been  profound,  were  at  pains  to  discern 
some  legal  test  of  idiocy.  Fitzherbert,  perhaps  the  first  of  them, 
laid  it  down  that  if  a  person  could  not  count  twenty  pence,  or  tell 
who  were  his  father  and  mother,  or  how  old  he  was,  he  was 
to  be  set  down  as  an  idiot ;  but  that  if  he  knew  and  understood  his 
letters,  and  could  read  by  another  man's  teaching,  he  was  not.^ 
But,  as  Lord  Hale  has  correctly  observed,  all  this  may  serve  for 
proof,  but  it  is  too  narrow  for  conclusion ;  and  idiocy  is  in  any 
case  a  question  of  fact  to  be  settled  by  all  the  proof  and  sometimes 
by  inspection.^ 

Idiocy,  on  the  whole,  appears  to  be  in  strictness  a  natural 
sterility  of  mind,  incurable  from  birth,  and  not  the  later  peiwersion 
of  a  developed  understanding;  yet  we  should  note  that  the  lapse 
of  an  intelligent  mind,  through  disease  or  decay,  into  a  totally 
dark  and  benighted  condition,  is  sometimes,  in  popular  speech, 
included  under  this  head,  or,  more  properly,  that  of  imbecility.^ 

6.  F.  N.  B.  532  B.  And  see  1  Redf.  mestic  experience  what  he  asserted, 
60;  4  Co.  Rep.  122;  Bac.  Abr.  when  he  stated  that  absolute  de- 
"  Idiots,"  etc.  A.   1.  mentia,   involving  an    entire   destruc- 

7.  1  Hale  P.  C.  29;  Hovey  v.  Chase,  tion  of  the  mental  faculties,  was  a 
52  Me.   304.  consequence,  by  no  means  uncommon, 

8.  See  1  Redf.  Wills,  61,  which,  of  insanity,  as  a  result  often  of  some 
liowever,  seems  a  careless  use  of  the  sudden  shock,  and  that  persons  may 
word  "  idiot."  But  this  distin-  be  rendered  permanently  insane  and 
guished   writer    knew   well    from    do-  finally    imbecile,    by    disappointment,, 

105 


§  9^ 


LAW  OF  WILLS. 


[PAKT    II. 


The  great  characteristic  of  idiocy  or  utter  imbecility  is  permanence 
with  little  or  no  variation,  though  it  sometimes  happens  (as  Dr. 
Lushington  has  observed)  that  an  idiot  will  demonstrate  a  greater 
degree  of  excitement  at  one  period  than  another.^ 

§  92.  Idiots  and  Utter  Imbeciles  have  no  Testamentary  Capacity. 

Idiots  and  utter  imbeciles  of  every  description,  whether  the 
want  of  understanding  were  produced  at  birth  or  in  later  life,  are 
necessarily  devoid  of  testamentary  capacity/  Such  persons  may 
acquire  a  title  in  property  by  act  of  the  law,  but  they  cannot 
manage  their  own  affairs,  nor  make  a  valid  contract,  nor  of  course 


bereavement,  religious  despair,  and 
other  severe  shocks  upon  the  nervous 
system.     lb.  65,  66. 

9.  Bannatyne  v.  Bannatyne,  14  E. 
L.  &  Eq.  581,  590,  591.  per  Dr.  Lush- 
ington. 

1.  Bannatyne  v.  Bannatyne,  14  E. 
L.  &  Eq.  581;  1  Redf.  Wills.  61;  Con- 
verse V.  Converse,  21  Vt.  163,  52  Am. 
Dec.   58. 

So  low  is  the  order  of  intelligence 
and  capacity  for  idiots  that  the  diiH- 
culty  ordinarily  presented  in  contests 
over  the  will  of  a  testator  whose  san- 
ity is  at  issue  cannot  be  said  to  arise 
here.  Cases  of  incapi'city  where  in- 
tellect is  manifested  to  a  very  low 
degree  may  be  dismissed  from  the 
present  consideration.  See  e.  g.  the 
facts  presented  in  Stewart  v.  Lis- 
penard,  26  Wend.  255.  If  the  alUged 
idiot  can  be  shown  to  have  intelli- 
gently and  without  constraint  or 
fraud  performed  acts  of  Imsiness 
(luring  the  period  in  which  idiocy  is 
rlainird  to  exist,  he  is  no  idiot  at  all. 
Bannatyne  v.  Bannatyne,  14  E.  L.  & 
Ef).  581,  16  Jur.  864,  is  a  case  in 
point.  It  was  shown  that  the  testa- 
tor kept  a  bank  account,  drew   drafts 


properly  upon  it,  and  received  the 
money  alone  in  person.  "  Many  acts 
of  business,"  observes  Dr.  Lushing- 
ton while  discussing  these  facts, 
"  could  possibly  be  done  by  a  lunatic 
and  the  lunacy  not  detected;  but  it 
is  scarcely  possible  to  predicate  the 
same  of  an  idiot  or  an  imbecile  per- 
son. .  .  .  Surely  no  idiot  could  have 
done  this,  for  he  must  have  exercised 
thought  to  go  to  the  bank,  memory 
and  judgment  as  to  the  sum  required; 
and  moreover  his  conduct  and  ae- 
meanor  could  not  at  such  times  have 
been  as  described  by  the  witnesses 
against  the  will,  or,  from  the  glaring 
colors  in  wliich  his  imbecility  is  de- 
picted, it  must  have  been  discovered, 
and  the  business  could  never  have 
l)ocn  transacted  at  all.  ...  To  put 
these  acts  upon  the  very  lowest  basis 
on  Avhich  they  can  be  placed,  they  do 
utterly  disprove  idiocy  or  imbecility. 
I  will  simply  repeat,  what  I  have  al- 
ready said,  that  those  who  are  af- 
flicted "with  lunacy  sometimes  have 
the  management  of  and  can  manage 
their  pecuniary  affairs, — an  idiot 
never." 


106 


CJIIAP.    v.] 


INCAPACITY  OF  IDIOTS^  ETC. 


9-i 


a  will ;  nor  are  thcj  held  responsible  for  criminal  acts ;  in  short, 
the  civil  disability  of  an  idiot  or  utter  imbecile  is  as  complete  as 
possible.^ 

§  93.  The  Same  Subject  illustrated. 

A  jSTew  York  case  aifords  an  instance  of  base  mental  condition, 
approximating  idiocy,  in  one  of  whose  incapacity  those  who 
planned  for  her  property  appear  to  have  taken  advantage.^ 

§  94.  Persons  born  Deaf,  Dumb,  and  Blind. 

Persons  born  deaf,  dumb,  and  blind  were  long  presumed  by  our 


2.  Dr.  Ray  and  some  other  writers 
on  medical  jurisprudence  define  ''  im- 
becility "  as  a  form  of  insanity  con- 
sisting in  mental  deficiency,  either 
congenital  or  resulting  from  an  ob- 
stacle to  the  development  of  the  fac- 
ulties, supervening  in  infancy.  Dr. 
Ray,  "Insanity,"  71;  Wharton  & 
Stille,  §  314;  Bouv.  Diet.  "Imbecil- 
ity." This  is  rather  a  narrow  defini- 
tion for  the  law  to  stand  upon,  con- 
sidering the  popular  significance  of 
this  word;  nor  are  the  courts  by  any 
means  so  precise  in  its  use. 

3.  Townsend  v.  Bogart,  5  Redf. 
(N.  Y.)  93  (1881).  An  unmarried 
woman  owning  real  estate  of  consid- 
erable value  lived,  after  the  mother's 
death  in  1862,  at  the  house  of  her 
cousin.  Here  she  died  in  1879,  a  lit- 
tle more  than  fifty  years  of  age,  hav- 
ing made  the  alleged  will  in  1869, 
signed  by  a  cross,  which  left  all  to  a 
member  of  the  family,  her  cousin's 
daughter.  This  daughter  was  present 
when  the  alleged  testatrix  visited  a 
lawyer's  office,  where  the  will  was 
drawn,  and  was  also  present  at  the 
time  of  the  alleged  execution.  It  was 
this  daughter's  brother  who  wrote 
decedent's    name    around     the     cross. 

10 


As  to  the  alleged  testatrix  herself,  it 
appeared  that  she  was  a  member  of 
the  Methodist  church,  and  attended 
church  and  Sunday  school  regularly ; 
that  she  took  care  of  her  room  and 
person,  and  could  do  some  light 
housework  and  needlework.  But  she 
was  not  in  vigorous  health,  was  af- 
flicted with  stuttering,  uttered  only 
short  sentences,  never  learned  to  read 
or  write,  though  she  had  attended 
school  for  three  years,  could  not 
count  more  than  ten,  nor  tell  the 
time  of  day  from  the  clock,  nor  add 
or  multiply;  had  no  idea  of  the 
value  of  property,  or  of  money  be- 
yond ten  cents,  was  easily  lost  in 
familiar  streets,  had  no  understand- 
ing of  what  her  estate  was  worth ; 
otherwise  evinced  a  weak  mind,  being 
unable  to  attend  to  most  of  those 
simple  things  which  persons  of  ordi- 
nary intelligence  can  perform;  had 
two  sisters,  one  of  whom  was  in  an 
insane  asylum,  and  in  1871  was  her- 
self adjudged  an  idiot.  Upon  this 
testimony  the  court  refused  to  admit 
the  will  to  probate.  See  also  De 
Laveaga's  Estate,  133  P.  307,  165 
Cal.  607  (want  of  mental  develop- 
ment). 


§    94:  LAW  OF  WILLS.  [part    II. 

law  to  be  idiots ;  for  the  senses  being  the  only  inlets  of  knowledge^ 
and  these,  the  most  importaiut  of  them,  being  closed,  ideas  and 
associations  were  shut  out  from  the  mind/  It  followed  that  no 
such  person  was  capable  of  making  a  valid  will.^  Down  to  a  period 
not  a  hundred  years  remote  this  opinion  widely  prevailed,  a 
contempt  for  physical  infirmity,  so  long  characteristic  of  the 
English  race,  giving  emphasis  to  the  hopeless  condition  of  these 
unfortunates.  Even  the  deaf-mute,  so  bom,  whose  eye  was  quick 
to  obsen^e,  has  been  remitted  to  the  same  rule  of  incapacity,  for, 
though  he  might  be  intelligent,  others  did  not  commonly  find 
him  intelligible.® 

Infirmities  such  as  these  may  be,  and,  we  think,  usually  are, 
purely  physical  in  their  origin,  involving  no  abnormal  condition 
of  the  brain.  But  like  a  solitary  prisoner  of  state,  who  pines  for 
^ears  in  a  dark  dungeon,  one  lapses  into  mental  disorder,  or  his 
faculties  become  stunted  and  fail  of  their  natural  development, 
because  sympathetic  intercourse  and  tlie  educating  process  are 
wanting.  Particularly  is  this  true  of  those  born  deaf,  dumb,  and 
blind ;  for  when  disqualification  comes  through  the  failure  of  the- 
senses  after  the  mind  has  developed,  so  that  solitude  is  not  vacancy, 
or  where  one  at  least  of  these  three  channels  of  social  intercourse 
is  left  open,  capacity  ought  more  readily  to  be  presumed  than 
incapacity. 

4.  1  Wrns.  Exrs.  17;  Rwinb.  pt.  2,  mere  circumstance  of  being  born  deif 
§  4.  pi.  2;  Taylor  Med.  Jur.  690.  691.  and     dumb.       "Perhaps,     after     all,'' 

5.  2  Bl.  Com.  497  states  the  inca-  adds  the  Chancellor,  "  the  presump- 
pacity  firmly  as  to  those  born  deaf,  tion  in  the  first  instance  is,  that 
dumb,  and  blind.  And  as  late  as  the  every  su:-h  person  is  incompetent.  It 
New  York  case  of  Brower  v.  Fisher,  is  a  reasonable  presumption,  in  order 
4  .Johns.  Ch.  441  (A.  D.  1820),  the  to  insure  protection  and  prevent 
deaf  and  dumb  by  nativity  were  con-  fraud,  and  is  founded  on  the  notnri- 
Bidered  as  prima  facie  insane  until  ous  fact,  that  the  want  of  hearing 
capacity  was  proved  by  special  ex-  and  speech  exceedingly  cramps  the 
ami  nation.  The  decision  under  an  powers,  and  limits  the  range  of  the 
inf|u<'Ht  cleared,   to   be   sure,   the    de-  mind." 

fendant,  because  the  presumption  was  6.   1    Ucdf.    Wills.    .51.   52;    1    Wm«. 

overcome,  and  Cliancollor  Kent  re-  Exrs.  17;  I'.rower  v.  Fisher,  4  Johns. 
fuHC'd  to  deem  him  an  idiot  from  the       Ch.   441. 

108 


CHAP,    v.]  INCAPACITY  OF  IDIOTS,  ETC.  §    95 

Deaf-mutes  are  found  in  our  times  as  bright  and  intelligent  as 
the  average  of  mankind  in  any  class,  and  the  remarkable  instance 
of  Laura  Bridgman  has  shown  the  humane  world,  since  1848, 
what  training  combined  with  sympathy  can  do  to  redeem  one  bom 
deaf,  dumb,  and  blind  from  the  reproach  of  idiocy.^  It  should 
in  truth,  be  set  down,  that,  like  the  solitary  captive  in  his  dungeon, 
such  beings  have  become  mentally  deranged  in  the  past  more  from 
the  want  of  an  outlet  than  an  inlet ;  that  the  callousness  or  cruelty 
of  the  strong  has  proved  their  crushing  misfortunte.  For  no  one 
is  so  physically  bereft  of  the  senses,  that  mind,  if  there  be  one, 
cannot  in  some  way  respond  to  mind. 

§  95.  The  Same  Subject :  Unfavorable  Presumption,  if  any,  may 
be  overcome. 
But  the  presumption  of  idiocy  and  testamentary  incapacity  in 
those  born  deaf,  dumb,  and  blind  was  by  the  common  law  prima 
facie  only,  and  might  always  be  overcome  by  proof  that  the  person 
had  sufficient  understanding;  in  which  case  he  was  at  liberty  to 
declare  by  signs  a  will,  which,  under  present  statutes,  ought  further 
to  be  reduced  to  writing,  according  to  his  wishes,  and  suitably 
executed.^  For  one  may  execute  a  written  instrument  without 
seeing  it  or  knowing  how  to  write.  Modern  alphabets  and  codes 
make  obvious  the  intention  of  the  dumb,  many  of  whom  can  express 
themselves  on  paper  at  this  day  as  well  as  the  average  of  society. 
It  is  by  no  means  impossible,  then,  that  one  deaf,  dumb,  and  blind 
should  make  a  valid  will ;  ^  and  that  deaf-mutes  or  any  others  whose 
senses  are  not  deficient  beyond  one  or  two  of  these  infirmities  may 
do  so  is  clear.^     Deafness,  though  absolute,  creates  no  incapacity. 

7.  Laura  Bridgman  was,  at  the  In-  American     travel.      Similar     remark- 

stitution  of  the  Blind  in  South  Bos-  able  cases  have  appeared  since  then, 

ton,  taught  how  to  converse  and  even  8.  See  2  Bl.  Com.  497  and  notes, 

to  write.     Her  case   and   its   success-  9.  Richardson,    J.,    in    Reynolds    v. 

ful    treatment    excited    the    astonish-  Reynolds,     1     Spears,   256;     Weir    v. 

ment  of  European  tourists  about  the  Fitzgerald,  2  Bradf.   (N.  Y.)   42. 

middle    of    the    nineteenth    century,  1.  1    Redf.   Wills,   51.    52;     Brower 

many  of  whom  described  her  appear-  v.  Fisher,  4  Johns.  Ch.  441,  per  Chan- 

ance     in     their     published    books     of  cellor   Kent;    Weir   v.    Fitzgerald,    3 

109 


§    96  LAW  OF  WILLS.  [pAET    II. 

In  short,  it  is  doubtful  whether  the  presumption  of  incapacity 
retains  in  our  law  any  force  whatever  as  to  the  deaf,  dumb,  and 
blind ;  but  if  it  does,  very  slight  proof  will  dispel  it,  in  any  case 
where  education  has  drawn  out  the  imprisoned  intellect.^ 

§  96.  Persons  Deaf,  Dumb,  or  Blind,  but  not  born  so,  presumed 
Capable. 

They  who  have  maintained  that  the  deaf,  dumb,  and  blind  are 
to  be  presumed  incapable  of  testamentary  disposition,  appear  to 
have  confined  this  positive  assertion  to  such  as  were  born  so.  To 
suppose  that  from  one  or  all  of  those  infirmities  a  mind  which 
has  once  reached  discretion  becomes  prima  facie  disqualified  is 
an  insult  to  the  afilicted.  Deafness,  dumbness,  blindness  may,  to 
be  sure,  like  a  humpback  or  splay-foot,  the  loss  of  a  limb  or  some 
incurable  disease,  or  any  other  impediment  to  social  enjoyment, 
produce  in  extreme  cases  moroseness  and  distortion  of  character; 
but  the  progress  towards  mental  incapacity,  if  there  be  any,  is 
usually  very  gradual.  JSTor  can  we  easily  conceive  of  a  person 
who  is  made  a  deaf-mute  by  causes  which  supervene  the  state  of 
infancy;  on  the  contrary,  the  disability  thus  manifested  is  partial 
only,  unless  indeed  the  sufferer  should  reach  that  last  stage  of 
general  decay  and  exluiustion  where  the  collapse  of  faculties, 
mental  and  physical  together,  makes  it  plain  enough  that  reason 
has  lost  her  throne.^ 

Instances  may  be  found,  fairly  recent,  in  the  reports,  where 
the  will  of  a  blind  and  deaf  person,  made  when  he  was  more  than 
a  hundred  years  old,  has  been  allowed  probate."*     Blindness,  deaf- 

Bradf.    (N.   Y.)     42;    2    Bradf.    265;  that     of     Lowe     v.     Williamson,     1 

Potts   V.  House,  6  Geo.  324;   Dieken-  Green  Ch.  82.     And  see  Gombault  v. 

son   V.  I'.lisset,   1   Dick.  268;   Harper,  Public  Admr.,  4  Bradf.   226;    134  N. 

Ke,  6  i\r.  &  Gr.  731.  Y.   682,   126  P.   29;   Purcell's   Estate, 

2.  Gombault  v.  Public  Admr.  4  128  P.  932,  164  Cal.  300;  Geiger  v. 
Bradf.    (N.  Y.)    226.  Bardwell,  99  N.  E.  582,  255  HI.  320; 

3.  Swinb.  pt.  2,  §  10;  1  Wnis.  Exrs.  Weir  v.  Fitzserald,  2  Bradf.  42.  In 
18.  Gombault  v.   Puldic   Admr.,  4   Bradf. 

4.  Wilson  V.  Mitchell,  101  Penn.  226,  it  was  held  that  where  the  tes^a- 
fii.     495,     Nearly  as  strong  a  case  is  tor.  a  person  of  great  intelligence  and 

1  10 


CHAP,    v.]  INCAPACITY  OF  IDIOTS^  ETC.  §    97 

riess,  or  dumbness,  in  a  case  like  this,  and  wlienever,  in  fact,  the 
disability  was  not  congenital,  may  still  be  competent  as  bearing 
upon  the  issue  of  mental  capacity,  of  will  or  no  will,  but  the  in- 
firmity itself  affords  no  presumption  whatever  of  legal  disqualifi- 
cation. 

§  97.  Liability   of   Deaf,    Dumb,   and   Blind   to   Imposition   and 
Error. 

Aside,  however,  from  the  question  of  their  capacity  or  in- 
capacity, it  is  evident  that  the  deaf,  dumb,  and  blind  are  peculiarly 
liable  to  error  and  imposition,  not  to  add  constraint,  in  making 
their  wills,  so  often  dependent  are  they  upon  others  for  expressing 
their  last  wishes,  if  not  physically  helpless  besides. 

As  to  educated  mutes  who  can  read  and  write  no  great  difficulty 
need  arise.  It  would  be  desirable  for  one  of  this  class  to  write 
out  his  will,  or  else  the  instructions  to  his  scrivener;  and  in  all 
respects  he  ought  to  express  his  wishes  so  that  the  witnesses  to  his 
testament  shall  understand  him  clearly.  Where  signs  of  under- 
standing and  approval  are  made  instead,  the  deaf  and  dumb  code, 
now  so  common  in  conversation,  seems  a  preferable  method  to 
mere  motions  whose  meaning  strangers  surrounding  him  might 
fail  to  interpret  intelligently.  That  mode  of  execution,  in  short, 
which  is  most  intelligible  to  the  outside  world,  as  well  as  to  inti- 
mates, fellow-sufferers,  and  deaf  and  dumb  instructors,  is  the 
most  prudent,  on  the  whole,  for  making  it  clear  that  the  will 
attested  was  the  product,  in  all  respects,  of  the  testator's  own 
mind.** 

acquirements,  but  totally  deaf  in  his  testator,  in  a  reported  case  before 
declining  age,  had  for  a  long  time  the  English  Court  of  Probate,  was 
carried  on  communications  with  deaf  and  dumb.  He  made  his  will  by 
others  by  their  writing  on  a  slate  communicating  instructions  to  an 
and  receiving  his  answers  orally,  it  acquaintance  by  signs  and  motions, 
was  competent  to  perform  the  cere-  These  instructions  were  reduced  to 
monies  of  executing  his  will  in  that  writing:  and  the  will  was  accord- 
mode.  See  §  137.  ingly  executed.  The  court  requin  d, 
5.  1  Redf.  Wills,  52;  Swinb.  pt.  2,  however,  an  affidavit  from  the  person 
§  10,  pi.  2;   1  Wms.  Exrs.  17,  18.     A  who  drew  the  will,  stating  the  nature 

111 


§    98  LAW  OF  WILLS.  [pART    II. 

§  98.  The  Same  Subject :  Wills  of  Blind  Persons. 

One  with  an  impediment  makes,  in  fact,  the  most  intelligible 
will  where  he  avoids  the  uncertainty  peculiar  to  that  impediment. 
Thus  the  educated  man,  deaf  or  speechless,  who  writes  or  carefully 
reads  to  himself  his  own  will,  and  makes  the  most  of  his  sight, 
enters  upon  a  disposition  not  likely  to  fail.  The  blind  has  his 
own  corresponding  precautions  to  take,  and  should  naturally  make 
the  most  of  his  other  organs.  In  the  old  text-books  of  ecclesias- 
tical law,  it  was  laid  down  that  the  blind  person  might  make  his 
oral  or  nuncupative  will,  but  not  a  written  one,  unless  the  writing 
had  first  been  read  over  before  witnesses  and  duly  acknowledged 
by  the  testator  in  their  presence ;  and  the  civil  law  following  its 
own  formula  of  capacity,  was  to  much  the  same  effect.®  With 
nuncupative  wills  English  and  American  courts  have,  of  course, 
but  little  concern  in  modern  times,  as  most  wills  should  be  written ; 
but  our  law  is  not  at  the  present  day  so  rigid  with  reference  to  the 
written  wills  of  those  deprived  of  sight.  It  is  highly  expedient, 
doubtless,  that  such  a  will  should  not  be  executed  or  witnessed 
without  being  first  carefully  read  to  the  testator  aloud. ^  Yet  the 
testator's  knowledge  and  approval  of  the  contents  being  the  main 
thing,  wherever  this  is  assured  by  adequate  proof  of  some  sort, 
the  other  requirement  may  well  be  dispensed  with.^  Good  reason 
might  exist  for  keeping  witnesses  ignorant  as  to  the  contents  of  the 
will  read  to  the  testator  which  they  are  called  upon  to  attest ;  ^  but 
ir  is  not  necessary  to  show  even  that  the  identical  paper  produced 
for  probate  was  ever  read  over  to  the  testator  himself.-^     In  short, 

of  these  signs  and  motions  by  which  7.   FlDcham     v.     Edwards,    3     Curt, 

the   instructions   were   conHiiunicated,  63;    Weir   v.    Fitzgerald    (N.   Y.),     2 

and  ultimately  refused  to  grant  pro-  Bradf.  42. 

bate     of     the     instvunient.     Owston,  8.   1    \^'ms.    Exrs.    18;    4   Bur.   Ecc. 

Goods  of,  2  Sw.  &  Tr.  461.     And  see  L.   60;    2   Cas.   temp.   Lee,   595;   Mar- 

Geale,  Re,  3  Sw.  &  Tr.  431;  Moore  v.  tin  v.  Mitchell,  28   Ga.   382;    1  Redf. 

Moore,  2  Bradf.  261.  Wills,   55;    Axford,   Re,   1    Sw.   &   Tr. 

6.   1  Wms.  Exrs.  18,  19;   Swinb.pt.  540. 

2,  §  11.     Fur  the  reason  of  the  Roman  9.  Wamphn-     v.    Wampler,     9     Md. 

law  oil  thi.s   point,  see  Gaius,  ii.   102-  540. 

104;    Inst.   ii.   123.  1.   Fincham     v.     Edwards,     3     Curt. 

112 


CHAP,    v.]  INCAPACITY  OF  IDIOTS^  ETC.  §    99 

the  bliud  testator's  knowledge  of  the  contents  of  the  instrument 
may  be  inferred  from  the  whole  of  the  testimony,  and  the  cir- 
cumstances attending  its  execution.^  His  declarations  made  after 
the  execution  of  the  will  are  competent  to  show  that  he  knew  what 
provisions  his  will  contained  at  the  time  he  executed,  and  that 
the  instrument,  in  fact,  embodied  just  what  he  purposed  it  should.^ 

§  99.  General  Conclusion  as  to  the  Wills  of  the  Deaf,  Dumb,  and 
Blind. 

In  a  case,  therefore,  of  mere  blindness,  or  other  physical  infirm- 
ity, if  no  allegation  of  deception,  undue  influence,  essential  error, 
or  fraud  of  any  kind  is  made  or  sustained,  probate  of  the  will 
should  be  granted  upon  satisfactory  evidence  that  the  testator 
knew  and  approved  of  the  contents  of  the  instrument.  Our  law 
does  not  prohibit  the  deaf,  dumb,  or  blind  from  making  their  wills. 
Defects  of  the  senses  and  bodily  defects,  or  diseases  in  general, 
do  not  incapacitate  if  the  testator  possesses  sufiicient  mind  to  per- 
form a  valid  testamentary  act.  As  for  our  present  statute  of  wills, 
they  do  not,  in  any  instance,  insist  upon  the  ceremonial  of  reading 
over  the  will-  to  the  testator  in  presence  of  the  witnesses,  desirable 
as  such  a  ceremonial  might  be,  in  case  of  the  illiterate  or  those  of 
very  defective  vision.*  It  is  true  that  something  more  than  the 
mere  formal  proof  of  execution  is  requisite  to  establish  the  validity 
of  a  will  when,  through  the  infirmities  of  the  testator,  his  iriipaired 

63,   affirmed   in  4   Moore   P.   C.   198;  set  forth.     The  Roman  civil  law    on 

Lewis  V.  Lewis,  6  S.  &  R.  496;  Hess'a  the  point  of  a  blind  man's  will,  ob- 

Appeal,  43  Penn.  St.  73,  82  Am.  Dec.  serves    Bradford,    Surrogate,    in    this 

551;    Boyd   v.    Cook,     3    Leigh,     32;  case,   has   not   prevailed   in   England, 

Glifton    V.    Murray,   7  Greo.   564,    50  nor  been  incorporated  in   any  of  the 

Am.  Dec.  411;  Martin  v.  Mitchell,  28  statutes  relative  to  wills.     "The  ob- 

Ga.    382.  ject  of  requiring  the  will  to  bo  read 

2.  Guthrie  v.  Price,  23  Ark.  396;  to  the  blind  man,"  he  adds,  ''was 
Day  V.  Day,  2  Green  Ch.  551;  Pick-  doubtless  to  prevent  fraud,  the  sub- 
ett's  Will,  89  P.  377,  49  Oreg.  127.  stitution   of   one   instrument   for   an- 

3.  Davis  V.  Rogers,  1  Houst.  44;  other,  and  to  secure  evidence,  be- 
Hurleston  v.  Corbett,  12  Rich.  604.  yond  the  mere  factum  of  the  will,  of 

4.  In  Weir  v.  Fitzgerald,  2  Bradf.  the  knowledge  of  the  contents  of  the 
43,   68,   these  doctrines   are   carefully  identical  will  by  the  testator." 

113 


§    99  LAW  OF  WILLS.  [pAKT    II. 

liealth  and  capacity,  or  the  circumstances  attending  the  transaction, 
the  usual  inference  cannot  be  drawn  from  the  formal  execution. 
In  such  a  case,  additional  proof  should  be  furnished  that  his  mind 
accompanied  the  will,  and  that  he  was  cognizant  of  its  provisions. 
This,  however,  may  be  established  by  the  subscribing  witnesses  or 
by  evidence  aliunde.^ 

It  follows  that,  in  the  probate  of  wills  executed  by  a  blind,  deaf, 
or  dumb  testator,  there  is  no  positive  requirement  that  the  wit- 
nesses should  be  able  to  depose  that  the  testator  was  cognizant  of 
the  contents  of  the  paper  which  he  declares  to  be  his  will,  and 
desires  them  to  attest;  ^  though  there  can  be  no  question  that  the 
more  prudent  and  proper  course  is  for  the  disabled  testator,  by 
appropriate  acts,  to  make  that  cognizance  clear  to  them. 

Some  of  eminent  authority  appear  still  to  regret  the  departure 
of  that  ancient  injunction  that  the  will  of  a  testator  who  is  blind 
or  cannot  read  should  be  read  over  to  him  in  the  presence  of  wit- 
nesses before  he  executes  it.^  But  the  liberal  rule  of  the  present 
day  on  that  point  is  sensible,  natural,  and  founded  in  practical 
experience.  Even  supposing  the  will  to  have  been  thus  read  over, 
cognizance  does  not  necessarily  follow;  yet  cognizance  is  the 
essential.  At  the  same  time,  the  force  and  justice  of  Jarman's 
observation  under  this  head  must  be  conceded :  "  That,  in  propor- 
tion as  the  infirmities  of  a  testator  expose  him  to  deception  [or, 
we  may  add,  to  material  error],  it  becomes  imperatively  the  duty, 
and  should  be  anxiously  the  care,  of  all  persons  assisting  in  the 
testamentary  transaction,  to  be  prepared  with  the  clearest  proof 
that  no  imposition  has  been  practiced  [or  error  incurred]."  ^  With 
the  loss  or  impairment  of  one  faculty  we  are  led  to  depend  more 
upon  the  other;  one  who  is  blind  becomes  more  alert  with  his 
hearing,  while  one  who  is  deaf  grows  to  use  his  eyes  with  quick 
vigilance. 

5.  lb.     See  c.  ix.  7.  See  1  Redf.  Wills,  58. 

6.  1   Redf.   Wills,   57;    Fincliara    v.  8.   1  Jarm.  Wills,  34. 
Edwards,   3   Curt.   63;    Weir  v.   Fitz- 

fc'erald,  2  Eradf.  42. 

114 


CHAP.    VI.]  LUNACY   AND    MENTAL    DERANGEMENT.  §    100 


CHAPTER  VI. 

LUNACY    AND   GENERAL    MENTAL    DEEANGEMEITT. 

§  100.  Scope  of  Present  Chapter;  Lunatics  and  Others  of  Men- 
tal Unsoundness  in  the  Medium  Degree. 

Our  endeavor  in  the  present  chapter  is  to  consider  the  incapacity 
of  those  insane  persons  whose  mental  development  is  higher  thaii 
that  of  the  idiot  or  imbecile,  but  lower  than  that  of  the  mono- 
maniacs, so  called,  the  delirious,  and  the  feeble-minded,  of  whom 
it  can  by  no  means  be  predicated  that  they  are  incapable  at  all. 
Mental  unsoundness  in  the  medium  degree  gives  the  scope  to  this 
chapter.  At  the  outset,  however,  we  shall  admit  that  the  finer 
attempts  to  classify  and  describe  the  various  types  of  insanity  arc 
by  no  means  satisfactory;  that  the  forms  and  symptoms  under 
which  mental  derangement  manifests  itself  are  so  subtle  and  diver- 
sified, varying  in  fact,  in  different  stages  of  social  progress,  run- 
ning like  a  mountain  brook  now  above  ground  and  now  under  it. 
as  to  baffle  the  most  wary  and  skilful  of  expert  observers ;  and  that 
one  habit  of  classification  has  been  superseded  by  another,  without 
arriving  at  tests  final  and  unerring. 

Insanity,  to  define  that  word,  settles,  as  we  have  already  indi- 
cated, in  the  opinion  of  the  best  medical  men,  into  a  comparison 
of  the  individual  with  himself  and  not  with  others ;  that  is  to  say, 
some  marked  departure  from  his  natural  and  normal  state  of  feel- 
ing and  thought,  his  habits  and  tastes,  which  is  either  inexplicable 
or  best  explained  by  reference  to  some  shock,  moral  or  physical, 
or  to  a  process  of  slow  decay,  shows  that  his  mind  is  becoming 
diseased  and  disordered.  Perhaps  the  seed  of  hereditary  malady 
is  germinating  within  him ;  perhaps  the  pressure  of  some  sudden 
calamity  affecting  his  future  life  and  prospects,  or  some  appre- 
hended danger,  is  too  great  for  the  brain  to  bear  up ;  its  walls  give 
way   to  the  strain,  and  those  most  intimate  with  him,   and  not 

115 


§  101  LAW  OF  WILLS.  [pART  IL 

seldom  the  individual  himself,  will  be  found  conscious  that  somo 
sort  of  mental  derangement  has  taken  place.^ 


§  101.  The  Same  Subject. 

Lunatics  and  idiots  constituted  formerly  the  only  two  classes  of 
which  the  courts  took  cognizance  when  called  upon  to  protect  per- 
sons who  were  mentally  deranged.  To  idiots  who  were  supposed 
never  to  have  had  reason,  applied  the  term  dementia  n^turalis; 
but  to  lunatics  dementia  accidentalis,  for  their  condition  involved 
a  loss  by  mischance  of  the  reason  they  had  once  possessed.  Hence, 
lunacy  embraced  in  the  broad  sense  all  mental  unsoundness  not 
congenital,  all,  in  a  word,  except  idiocy.  But  this  imperfect  clas- 
sification has  within  a  century  been  discarded.  For  imbeciles  of 
the  lowest  order,  though  accidentally  demented,  may  well  be 
graded  with  the  idiot  or  natural  fool ;  while  lunacy,  on  the  other 
hand,  falls  so  far  short  of  describing  the  second  grade  of  insanity 
that  a  resen^ation  of  "  others  non  compotes  "  or  some  such  expres- 
sion became  needful ;  for  which  reason  a  new  term,  "  unsoundness 
of  mind,"  was  introduced,  which,  medical  experts  tell  us,  has 
never  been  very  clearly  defined.^ 

1.  Dr.  Ray,  Insanity.  71  et  seq.;  cast.  But  the  moon  illustration  has 
Dr.  Gooch  in  43  London  Quarterly  obviously  no  fitness  for  a  great  many 
Rev.  355.  And  see  1  Redf.  Wills,  67,  of  the  milder  examples  of  insanity, 
68.  where,   in    fact,   no   violent    derange- 

2.  Lunacy,  as  the  word  strictly  ment  is  exhibited,  no  periodical  ebb 
imports,  was  a  sort  of  intermittent  and  flow  of  madness,  no  lucid  inter- 
or  tidal  insanity,  so  to  speak.  The  vals  when  reason  resumes  her  sway. 
deranged  mind,  in  such  cases,  was  In  these  latter  cases  a  loss  of  intel- 
supposed  to  be  influenced  by  the  lect,  feebleness  of  will,  a  perversion 
moon,  or  at  least  the  disorder  was  of  tastes,  habits,  and  character,  and 
most  violently  manifested  at  recur-  an  incapacity,  more  or  less  marked, 
ring  periods,  and  by  regular  phases.  to  apprehend  the  true  relation  of 
•Anotlier  phenomenon  attending  it  things,  constitutes  essentially  the 
was  that  of  lucid  intervals,  when  mental  disorder.  Gooch,  43  Lond. 
the  mind  seemed  to  .shine  out  brightly  Quart.  Rev.  355;  3  Cert.  Ecc.  671; 
like  the  full  moon  emerging  from  a  1  Whart.  &  Stille  Med.  Jur.  §§  61, 
cloud   when   the  .sky   is   partly    over-  744. 

116 


CHAP.    VI.]  T^rNACY   AND   MENTAL   DERANGEMENT. 


§  101 


§  102.  The  Same  Subject. 

Illusions  may  l)e  a  proof  of  unsound  mind ;  and  perversion  of 
judgmenl;  is  also  found  here.^ 

§  103.  Attempts  of  Experts  and  Others  to  Classify  Insanity. 

That  the  task  of  classifying  the  different  forms  of  insanity  is 
a  -formidable  one  appears  in  the  greatly  differing  results  which 
the  best  of  medical  experts  thus  far  afford.  Tests  of  causation, 
symptom  and  order  of  development,  all  of  which  have  their  un- 
doubted uses  in  the  study  of  mental  disease,  are  not  unfrequently 
confounded  in  the  most  arbitrary  manner.^     But  no  hypothesis, 


2a.  See  1  Redf .  Wills,  67,  68 ;  Tay- 
lor Med.  Jur.  629. 

3.  Among  examples  of  analjsis  the 
most  simple  and  philosophical,  two, 
however,  may  be  selected.  The  first 
is  that  of  Casper  and  Liman,  which 
classifies  under  two  heads:  (1)  In- 
sanity in  its  progress,  including  de- 
spondency, melancholy,  excitation, 
mania,  as  among  the  various  forms 
in  which  this  progress  exhibits 
itself;  (2)  Insanity  in  its  results, 
including  imbecilit.y  dementia,  and 
fatuity.  1  Wharton  &  Stille  Med. 
Jur.   §   310. 

The  second  analysis  is  by  Dr.  Ray, 
who  adapts  to  his  purpose  the  old 
division  of  natural  and  accidental 
insanity,  and  appears  to  restrict 
"  imbecility "  still  to  such  abnormal 
types  as  are  referable  to  birth  or 
early  years.  See  supra,  §  92.  He 
arranges  all  the  various  disorders  in- 
cluded in  the  general  term  insanity 
under  two  divisions,  founded  on  two 
very  different  conditions  of  the 
brain;  (1)  A  want  of  its  ordinary 
development;  (2)  Some  lesion  of  its 
structure  subsequent  to  its  develop- 
ment. "  In  the  former  of  these  di- 
visions,"   he   adds,    "  we   have   idiocy 


and  imbecility,  diff'ering  from  each 
other  only  in  degree.  The  various 
affections  embraced  in  the  latter 
general  division  may  be  arranged 
under  two  subdivisions,  mania  and 
dementia,  distinguished  by  the  con- 
trast they  present  in  the  energy  and 
tone  of  the  mental  manifestations. 
Mania  is  characterized  by  unnatural 
exaltation  or  depression  of  the  fac- 
ulties, and  may  be  confined  to  the  in- 
tellectual or  to  the  effective  powers, 
or  it  may  involve  them  both,  and 
these  powers  may  be  generally  or 
partially  deranged.  Dementia  de- 
pends on  a  more  or  less  complete  en- 
feeblement  of  the  faculties,  and  may 
be  consecutive  to  injury  of  the  brain, 
to  mania,  or  to  some  other  disease; 
or  it  may  be  connected  with  the 
decay  of  old  age."  Dr.  Ray  Insan- 
ity,  71;    1   Wharton  &   Stille,  §  314. 

Both  of  these  modes  of  classifica- 
tion are  commended  by  writers  on 
this  branch  of  jurisprudence;  but, 
after  all,  the  chief  advantage  that 
they  afford  is  to  medical  men  and 
psychologists,  whose  positive  sanc- 
tion has  not  been  accorded  to  either 
analysis.     See  these  modes  of  classifi- 


117 


§    104  LAW  OF   WILLS.  [pART    II. 

according  to  sound  modern  authority,  can  be  constructed  which 
will  meet  with  exactness  every  possible  case  of  mental  unsound- 
ness that  may  come  before  the  courts.'* 

§  104.  Common  Symptoms  or  Manifestations  of  Insanity. 

The  physiognomy  of  the  person,  his  entire  exterior,  his  gestures, 
his  eyes,  his  words,  the  first  impression  produced  upon  him  by 
the  appearance  of  a  physician,  all  these  aid  at  once  to  detect 
whether  he  is  insane,  or  bona  fide  sane,  or  cunningly  pretending 
insanity.  The  form  of  the  skull  is  often  found  peculiar  in  every 
description  of  insanity,  but  rarely  does  marked  malformation  ap- 
pear save  as  to  idiots  and  the  lowest  type  of  imbeciles.  Physical 
condition,  though  not  necessary  to  prove  insanity,  since  insanity 
may  exist  while  the  bodily  functions  are  normal,  or  vice  versa^ 
is  often  an  important  factor  of  proof,  and  the  more  so  because  such 
conditions  cannot  be  feig-ned ;  as  for  instance,  nervous  disturb- 
ances, sleeplessness,  an  irregular  pulse,  peculiar  secretions,  besides 
which,  hereditary  tendency  and  matters  of  temperament,  disposi- 
tion, and  age,  and  the  like,  call  for  medical  attention.  One's  con- 
versation and  deportment,  his  writings,  his  prior  history  in  gen- 
eral, all  bear  upon  the  question  of  sanity  or  insanity,  when  the 
observer  desires  to  form  a  conclusion.  So,  too,  the  nature  of  the 
act  or  trausaetion,  suah  as  its  insensibility,  its  incongruity,  its  mo- 
tivelessness,  and  the  person's  apparent  forgetfulness  of  it,  his  fail- 
ure to  profit  by  or  escape  from  its  consequences.  All  of  these 
manifestations  of  insanity  medical  men  take  pains  to  observe  in 
their  diagnosis  of  a  case.® 

A  change  of  moral  disposition  is  one  of  the  first  symptoms,  other 
than  physical,  with  which  insanity  as  a  disease  usually  makes  its 
appearance.^ 

cation     with     others     detailed    in    1  Jur.  §§  345-380,  where  the  subject  is 

Wharton  &  Stille  Med.  Jur.   §§   310-  treated    at    length   from  tlie  inodico- 

3H").  legal   standpoint. 

4.  1  Wharton  &  Stille,  §  318.  7.  E.\treme    irritability,    pronncss 

5.  Svpra,  §  84.  to  anger,  suspicion,  concealment,   ob- 

6.  See    1     Wharton   &   Stillo    Med.  stinacy,    and    perverseness     are    com- 

118 


CHAP.    VI.]  LUNACY   AND    MENTAL    DERANGEMENT.  §     106 

§  105.  The  Will  of  a  Lunatic  or  one  Mentally  Diseased  is  In- 
valid. 

!N"ow,  as  to  wills  more  especially,  and  the  testamentary  incapacity 
of  persons  who  are  lunatics  or  mentally  diseased ;  in  other  words, 
the  usual  cases  embraced  under  the  head  of  general  insanity,  not 
congenital.  While  the  insanity  exists,  the  testament  of  such  a 
person  is  not  good,  because  every  testament  should  be  the  product 
of  a  sound  and  disposing  mind  and  memory.^  But  if  the  disease 
be  not  incurable,  a  state  of  mind  may  exist  during  which  one's 
voluntary  disposition  may  deserve  to  stand  as  a  normal  one.  And 
the  mental  disease  in  a  patient  may  so  advance  or  recede  that  at 
one  stage  he  might  be  called  capable,  at  another  incapable,  while 
at  any  stage  all  the  circumstances  surrounding  the  testamentary 
act  would  desen'e  a  patient  consideration. 

§  106.  Effect  of  Restoration  to  Health,  and  Intermittent  Insanity. 

If  the  disease,  like  any  sickness  or  disorder,  ends  in  a  complete 
restoration  to  normal  health,  the  person,  being  no  longer  non 
compos,  becomes  capable  once  more  of  making  a  will.  But  com- 
plete restoration  is  less  common  than  a  cure  which  leaves  the  fac- 
ulties-still  impaired  and  liable,  through  feebleness  of  intellect, 
volition,  or  moral  sense,  to  unsound  operation  and  susceptible  to 
evil  influences.     An  intermittent  insanity,  moreover,  is  observable 

mon.       In     regard    to   the   affections,  ulties  not  all  are  uniformly  in  an  r,b- 

various  abnormal  impulses  and  incli-  normal  state;   on  the  contrary,  some 

nations   are  observed;    such   as   fond-  functions  occasionally    improve,  thus 

ness  of  or  aversion  to  particular  per-  producing  a  complex  state  of  madness 

sons,    without     any     special    reason;  on  the  one  hand,   and  of  wit,   rcflec- 

disposition  to  exercise    cruelty,  mur-  tion,   and    shrewdness,   on   the   other. 

derous    desires,    a    wish     to     commit  1  Wharton  &  Stille  Med.  Jur.  3d  Ed. 

arson,   or  to   steal.     Memory   is  gen-  §    361. 

erally  good  in  reference  to  things  8.  Swinb.  pt.  2,  §  3;  4  Rep.  123b; 
occurring  during  the  disease,  or  to  Kemble  v.  Church,  3  Hagg.  273. 
persons  with  whom  the  patient  was  But,  of  course,  a  will  is  not  re- 
then  connected,  but  defective  or  mis-  voked  by  the  subsequent  insanity  of 
taken  as  to  things  which  occurred  the  testator.  Swinb.  pt.  2,  §  3;  4 
previously.      Of   the    intellectual    fac-  Co.    61b;    Revocation,   post. 

119 


§    107  LAW  OF  WILLS.  [pAET    II. 

in  some  cases,  not  merely  in  the  sense  of  a  transition  from  insane 
frenzy  and  delirium  to  insane  repose,  but  so  that  the  mind  beams 
out  clearly  once  more,  so  to  speak,  from  the  surrounding  clouds, 
sometimes,  but  not  always,  with  a  lasting  radiance  sufficient  to 
disperse  them.  For  reason,  when  thrown  from  her  seat,  struggles 
almost  instinctively  to  recover  it  before  succumbing  to  adverse  cir- 
cumstances, as  the  swimmer  who  is  swept  down  a  current  reaches 
out  convulsively  for  rope  or  spar  until  despair  overwhelms  him. 
In  either  instance,  the  tenacious  hold  upon  whatever  offers  may 
save  the  life  or  the  reason,  yet  that  hold  will  perhaps  be  lost 
again. 

§  107.  Lucid  Intervals. 

Of  that  shining  out  through  the  clouds,  as  it  were,  the  reports 
have  had  much  to  say  in  dealing  with  lunatics,  whose  mental  con- 
dition suggested  to  those  who  watched  them  the  peculiar  phases 
and  solitary  wanderings  of  the  moon.  In  the  first  stages  of  in- 
sanity particularly,  and  until  the  malady  becomes  incurable  and 
confirmed,  the  attacks  are  to  some  extent  intermittent,  occurring 
at  regular  or  irregular  intervals,  as  the  case  may  be,  and  accom- 
panied by  alternate  paroxysms  and  relaxations.  But,  as  an  emi- 
nent writer  observes,  "  the  term  '  lucid  interval  '  has  acquired  a 
kind  of  technical  import  in  legal  language,  and  is  not  in  that  sense 
applicable  to  this  intermittent  character  of  the  disease."  ® 

Some  eminent  psychologists  deny  the  possibility  of  lucid  inter- 
vals, as  our  courts  define  that  phrase.-^  But  there  seems  no  good 
reason  to  doubt  that  such  a  condition  of  mind  may  exist ;  for  many 
examples,  besides  that  of  George  III.,  serve  to  remind  us  that  one 
who  loses  his  reason  may  be  restored  to  apparent  health;  and  yet 
at  some  later  date,  perhaps  not  for  years,  relapse  into  clear  in- 
sanity under  the  pressure  of  age  or  harassing  experience.  This, 
perhaps,  is  drawing  the  line  of  lucid  intervals  more  boldly  than 
the  phrase  assumes;  but  if  the  bold  lines  are  visible,  the  finer  ones 

9.   1  Rcdf.  Wills,  C3.  1.  See    1    Wharton    &    Stille   Med. 

Jur.    §§    744-747. 
120 


CHAP.    VI.]  LUNACY   AND   MENTAL   DEIiANGEMENT.  §     lOh 

doubtless  exist,  tliouglit  tiie  laymaii  cannot  trace  them  so  clearly. 
Tlie  lucid  interval  involves,  in  general,  a  restoration  of  reason,  con- 
sciousness, and  insight  sufficient  for  performing  certain  intelligent 
acts  and  assuming  at  least  a  modified  penal  responsibility;  but  in 
the  more  delicate  shades  of  the  malady,  medical  science  confesses 
that  the  mind  is  not  entirely  clear,  nor  is  the  patient  quite  the 
capable  person  that  he  was  before  he  became  insane.^* 

§  108.  Lucid  Intervals,  as  distinguished  from  Mere  Abatement 
of  Mania,  etc. 

Medical  men  of  authority  have  distinguished  between  a  lucid 
interval  and  the  mere  remission  of  mania.  "  By  a  lucid  interval, 
pays  Dr.  Taylor,  "  we  are  to  understand  a  temporary  cessation  of 
the  inasnity  or  a  perfect  restoration  to  reason.  This  state  differs 
entirely  from  a  remission,  in  which  there  is  a  mere  abatement  of 
the  symptoms.-'  ^  And  again  he  observes,  more  cautiously,  that 
nothing  more  is  intended  by  lucid  interval  than  that  the  patient 
shall  become  entirely  conscious  of  his  acts  and  capacity."^  Other 
writers  eminent  in  medical  jurisprudence  have  attempted  a  closer 
grade  of  the  different  kinds  of  improvement  or  interruption,  vary- 
ing in  order  as  insanity  abates.* 

Distinctions  so  fine  as  these  are  hardly  admissible  in  judicial 
administration.  But  to  take  the  lucid  interval  in  its  wider  legal 
acceptation,  there  is  good  ground  for  recognizing  often  a  certain 
capacity  for  civil  transactions,  a  certain  responsibility,  in  one  who 
has  been  insane,  even  though  his  restoration  to  mental  soundness 
at  the  particular  stage  of  action,  may  not,  upon  a  full  review  of 
his  life,  be  pronounced  perfect.  Medical  jurists  of  established  re- 
pute themselves  admit  that  even  though,  in  an  absolute  diagnostic 
point  of  view,  they  prefer  to  reject  the  lucid  interval  theory,  and 
believe  in  the  continuity  of  the  insane  malady,  they  still  think 
that  one  who  is  deranged  can  perform  certain  acts  with  a  perfect 

la.  lb.  3.  lb. 

2.  Taylor   Med.  Jud.   651;    2   Redf.  4.  1  Wharton  &  Stil^e,  §  747;  Rush. 

Wills,   108,   109.  on  the  Mind,  pp.  162-164. 

121 


§    109  LAW   OF  WILLS.  [pART    II. 

knowledge  of  cause,  and  can  even  exercise  his  intelligence,  pro- 
vided that  lie  is  placed  under  the  influence  of  certain  protective 
conditions.'' 

§  109.  Lucid   Intervals   in    Cases   which   involve   Testamentary 
Capacity. 

The  admission  of  medical  jurists  just  not^d  is  sufficient  for  the 
legal  theory  of  lucid  intervals  which  we  find  practically  applied 
by  our  courts,  in  cases  which  involve  the  issue  of  testamentary 
capacity.  Here,  let  us  observe,  although  the  insane  person  himself 
has  passed  beyond  mortal  jurisdiction,  and  the  issue  must  be  de- 
termined without  him,  the  whole  range  of  his  life  and  the  circum- 
stances of  his  death  assist  the  diagnosis.  "  Lucid  interval  "  has 
here  no  fine-drawn  significance ;  but  the  legal  idea  is  that  the  in- 
sane person's  mind,  though  not  positively  and  absolutely  restored 
to  normal  health,  was  at  least  capable,  at  the  time  of  the  testament- 
ary act,  of  performing  that  act,  and  did  so  with  independence  and 
intelligence  sufficient  to  justify  the  conclusion  that  his  will  should 
be  sustained  as  a  valid  one.  One  lately  insane  who  has  fully  re- 
covered his  reason  once  more  may  unquestionably  make  his  will 
like  any  other  person  sui  juris;  but  the  law  recognizes  a  mental 
condition  less  complete  —  one  which  falls  short  of  a  plain  cure, 
and  yet  should  be  distinguished  from  that  condition  where  the 
patient,  though  calm,  is  still  insane  and  incapable.  "  By  a  per- 
fect interval,"  says  Lord-Chancellor  Thurlow,  "  I  do  not  mean  a 
cooler  moment,  an  abatement  of  pain  or  violence,  or  of  a  higher 
state  of  torture,  a  mind  relieved  from  excessive  pressure ;  but  an 

5.  "  Thp  r(«:ulating  discipline  of  an  of  the  extent  of  the  delirium  at  the 
asylum,"  wisely  observes  one  writer,  time,  and  the  relations  existing  be- 
"  tends  greatly  to  this  result,  and  twccn  the  action  and  the  dcliri;us 
therefore  it  is  not  astonishing  if  one  conception.  So,  though  not  admitting 
insane  can  perform  certain  civil  acts  the  existence  of  a  lucid  interval,  we 
of  a  simple  character,  and  may  con-  still  believe  that  the  madman  m'y 
sent  to  a  division  of  property,  or  be  placed  in  a  situation  tliat  permits 
even  authorize  a  mairinge.  Tlic  him  to  appreciate  the  action  de- 
legality  of  tlie  act  is  essentially  sub-  manded  of  him."  1  Wliart.  &  Stille 
ordinate    to    a    previous   appieciation  IMed.  Jur.  3d  Ed.   §   745. 

122 


<:HAP.    VI.]  LUNACY   AND   ISIENTAL    DERANGEMENT. 


110 


interval  in  which  the  mind,  having  thrown  off  the  disease,  had 
recovered  its  general  habit."  ®  This  figure  is  convenient  to  enable 
laymen  to  distirLguisih  the  conditions ;  but  the  definition  does  not, 
or  should  not,  imply  that  one  must  be  absolutely  restored  to  normal 
soundness,  for  the  time  being,  in  order  to  make  a  valid  testament. 
The  faculties  of  the  mind  are  indeed  restored  sufficiently  to  enable 
a  testator  to  comprehend  soundly  tlie  business  in  which  he  is  en- 
gaged ;  but  he  may  still  be  laboring  under  extreme  feebleness,  from 
the  effects  of  the  disorder;  it  may  be  highly  probable,  moreover, 
that  the  paroxysm,  the  violent  symptoms,  will  recur;  and  his  res- 
toration may  be  to  the  disposing  state  or  mind,  but  not  to  a  state 
so  healthy  as  before.^ 

§  110.  Will  may  be  established  as  made  during  a  Lucid  Interval; 
Burden  of  Proof. 

The  will  of  a  person  who  was  at  some  period  insane  may  be 


6.  Attorney-General  v.  Parnther,  3 
Brown  C.  C.  444.  See  Eden's  note, 
ib.  445;  11  Ves.  11,  commenting  upon 
Lord   Thurlow's    definition. 

Upon  this  subject  of  lucid  inter- 
vals Bradford,  Surrogate,  in  1857, 
observed  with  much  force  and  discre- 
tion in  Gombault  v.  Public  Admr.  4 
Bradf.  (N.  Y.)  226,  238,  as  follows: 
"Among  the  most  mysterious  of  the 
phenomena  of  the  human  mind,  is  the 
variation  of  the  power  and  orderly 
action  of  the  faculties,  under  difl'er- 
ent  circumstances  and  conditions, 
and  at  different  times ;  and  espec- 
ially mysterious  is  the  oscillation 
from  insanity  to  sanity,  the  rational 
power  often  fluctuating  to  and  fro, 
until  reason  ultimately  settles  down 
firmly  upon  her  throne,  or  falls, 
never  again  to  resume  her  place  in 
this  life.  Without  speculating  upon 
this  interesting  theme,  it  is  sufficient 

12 


to  say  that  the  law  recognizes  the 
fact  established  by  experience,  and 
does  not  hesitate  to  ratify  the  valid- 
ity of  a  transaction  performed  in  a 
lucid  interval;  though  it  is  exacting 
in  its  demands,  and  scrutinizing  in 
its  judgment,  of  facts  adduced  to  ex- 
hibit and  demonstrate  intelligent  ac- 
tion at  the  time  of  the  event  under 
investigation.  The  princip'e  is  thus 
stated  in  the  Institutes :  Furiosi 
autem  si  per  id  tempus  fecerint  testa- 
memtum  quo  furor  eorum  intermissus 
est,  jure  testati  esse  videntur. 
(Quibus  non  est  permissum  facere 
testamentum,  lib.  2,  tit.  12,  §  1.) 
And  it  has  been  fully  admitted  in 
its  broadest  extent  in  the  ecclesiasti- 
cal courts.  There  can  be  no  doubt 
that  during  an  intermission  of  the 
disease  the  testamentary  capacity  is 
restored." 

7.  1  Redf.  Wills,  113;  Hall  v.  War- 

3 


§    110  LAW  OF  WILLS.  [pART    II. 

established  in  probate  bj  overcoming  any  presumption  of  his  in- 
capacitij  at  the  date  of  execuition;  and  the  force  of  such  a  pre- 
sumption, or  its  existence  at  all,  depends  upon  differing  circum- 
stances to  be  dwelt  upon  hereafter.^  If  the  testator,  once  insane, 
has  been  restored  to  perfect  soundness,  his  will  deserves  as  favor- 
able consideration  in  the  court  of  probate  as  though  he  had  never 
lost  his  reason.^  But  where  a  state  of  habitual  insanity  is  shown, 
continuous  and  chronic,  the  presumption  gathers  great  force  that 
any  will  which  such  a  person  may  have  executed  is  tainted  or  dis- 
colored by  his  insanity,  and  consequently  cannot  operate/  And 
unquestionably  the  state  of  insanity  once  clearly  developed  in  the 
patient,  there  is  much  reason  to  apprehend  that  the  disorder  may 
again  recur,  though  disappearing  for  a  season.  If,  then,  not- 
withstanding any  adverse  presumption,  it  can  be  established  that 
the  party  afflicted  habitually  by  mental  unsoundness  was  wholly 
cured  when  he  made  his  will,  or,  much  less  than  this,  that  the 
testamentary  disposition  took  pla^e  while  there  was  an  intermission 
of  the  disorder,  or,  in  other  words,  during  a  ''  lucid  interval,"  the 
will  should  be  upheld. 

There  are  English  cases  which  thus  sustain  wills  made  during 
a  lucid  interval,  subject  to  the  unfavorable  presumption  against 
capacity  which  must  first  be  overcome.^  American  cases  are  found 
of  the  same  tenor.^ 

ren,    9    Ves.    611,    per    Sir   William  Symes  v.   Green,    1    S\v.   &  Tr.   401; 

Grant;    Holyland,   Ex  parte,   11  Ves.  Nichols  v.  Binns,  1  Sw.  &  Tr.  239. 

11.  In    C'artwright    v.    Cartwright,      1 

8.  Post,  c.  9.  Phillim.     100,     Sir   W.    Wynne    thus 

9.  Snow   V.   Benton,   28   111.    306.  states  the  principle:   "If  you  can  es- 

1.  See  Hix  v.  Whittemore,  4  Met.  tablish  lliat  the  party  afflicted  hab- 
545;  Steed  v.  Galley,  1  Keen,  620,  itually  by  a  malady  of  the  mind  has 
626;  Wliite  Home  v.  Haeg,  68  N.  intermissions,  and  if  there  was  an  in- 
E.  568,  204  111.  422;  105  N.  W.  termission  of  the  disorder  at  the 
377,  129  Iowa,  93;  Keely  v.  Moore,  time  of  the  act,  that  being  proved,  is 
196  IT.  S.  38,  49  L.  Ed.  376.  sufTicient,   and    the    general    habitual 

2.  Hall  V.  Warren,  9  Ves.  611;  insanity  will  not  affect  it;  but  the 
Holyland,  Ex  parte,  11  Ves.  11;  1  efTeot  of  it  is  this — it  inverts  the  order 
Wms.  Exrs.  21,  22;  White  v.  Driver,  of  proof  and  of  presumption:  for, 
1    Phillim.     84;     1     J.-irin.    Wills,    3f) ;  until    [imof    of    habitual    insanity     is 

121 


<:HAr.    VI.]  LUNACY   AND   MENTAL    DERANGEMENT.  §     111 

§  111.  Lucid  Intervals;  Clear  and  Satisfactory  Proof  required. 

But  clear  and  satisfactory  proof  should  be  required  that  the 
person  habitually  insane  made  the  will  in  question  intelligently 
and  freely,  during  a  lucid  interval,  where  this  and  not  a  complete 
recovery  is  to  be  established.  The  authorities  above  cited  are 
quite  harmonious  in  this  conclusion.*  Such  proof,  it  has  been  well 
observed,  is  extremely  difficult,  for  this  reason,  among  others,  that 
the  patient  is  not  imfrequently  rational  to  all  oiutward  appearance 
without  any  real  abatement  of  his  malady.^  On  the  other  hand, 
if  the  deceased  was  subject  to  attacks  producing  temporary  in- 
capacity, and  was  at  other  times  in  full  possession  of  his  mental 
powers,  such  attacks  may  naturally  create  in  those  who  only  hap- 
pened to  see  him  when  subject  to  them  a  strong  opinion  of  his 
permanent  incapacity.  These  considerations,  while  they  tend  to 
reconcile  the  apparent  contradictions  of  witnesses,  render  it  neces- 
sary for  the  couit  to  rely  but  little  upon  mere  opinion,  to  look  at 
the  grounds  upon  which  opinions  are  formed,  and  to  be  guided 
in  its  own  judgment  by  facts  proved,  and  by  acts  done,  rather  than 
by  the  judgment  of  others.® 

The  standard  of  mental  capacity  which  this  proof  should  estab- 

made,   the  presumption   is,   that    the  Dec.     701;     118     La.     695,      43      So. 

party,  like  all  human  creatures,  was  281;   Council  v.  Mayhew,  55   So.  314 

rational;   but  where  an  habitual    in-  (Ala.)  ;     Murphy's     Estate,     116     P. 

sanity   in   the    mind    of    the     person  1004,  43  Mont.  353;  Norton  v.  Clark, 

who  does  the  act  is  established,  then  253  111.  558,  566,  97  N.  E.  1079. 

the  party  who  would  take  advantage  4.  Cases  cited  in  preceding  section; 

of  the  fact  of  an   interval   of  reason  Sir  John  Nicoll   in  White  v.  Driver, 

must   prove   it."  1  Phillim.   88. 

3.  Gombault    v.     Public    Admr.,    4  5.  Brogden  v.  Brown,  2  Add.  445. 

Bradf.    (N.  Y.)    226;   Halley  v.  Web-  6.  These  prudent    observations    are 

ster,   21   Me.   461;    Brock  v.  Luckett,  made  by  Sir  John  Nicoll,  in  Kindle- 

4  How.   (Miss.)  459;  Harden  v.  Hays,  side  v.  Harrison,  2  Phillim.  459,  and 

9  Penn.   St.   151;   Gangwere's  Estate,  in   other   cases   cited,    1    Wms.   Exrs. 

14  Penn.  St.  417 ,   53  Am.  Dec.  554 ;  22 ;    also  by  Tindal,  C.  J.,  in  Tatham  v. 

Cochran's   Will,   1   Mont.   263;    Goble  Wright,  2  Russ.  &  M.  21,  22;  and  by 

V.  Grant,  2  Green  Ch.  629;   Lucas  v.  Lord  Langdale  in  Steed  v.  Galley,    1 

Parsons,  27   Geo.    593;     Chandler    v.  Keen,  620. 
Barrett,     21     La.     Ann.    58,    99    Am. 

125 


§    112  LAW   OF  WILLS.  [pART    II. 

lish  is,  as  we  apprehend,  the  usual  one  favored  by  the  later  cases 
and  set  forth  already :  namely,  capacity  on  the  part  of  the  testator 
sufficient  to  comprehend  the  condition  of  his  property,  also  his  re- 
lations towards  the  persons  who  are  or  might  be  the  objects  of  his 
bounty,  and  the  scope  and  bearing  of  the  provisions  of  the  willJ 
And  the  test  constantly  recurring  is  whether  one's  acts  correspond 
to  those  when  in  his  normal  sane  condition."^ 

§  112.  Circumstances  Favorable  to  Proof  of  Lucid  Interval;  a 
Just  and  Natural  Will. 
It  is  a  very  favorable  circumstance  that  a  will  whose  execution 
is  claimed  to  have  taken  place  during  a  lucid  interval  appears  just 
and  natural  in  its  provisions,  so  that  injury  cannot  be  done  by 
admitting  the  instrument  to  probate ;  and  conversely,  the  harsh 
and  unnatural  will  of  one  who  was  prima  facie  insane  at  its  exe- 
cution may  readily  be  presumed  the  offspring  of  a  mind  still 
clouded  hj  the  disorder.  This,  we  have  seen,  is  a  maxim  of  much 
wider  scope  for  doubtful  cases  of  mental  capacity.^  The  English 
case  of  Cartwright  v.  Cartwriglit,^  decided  by  Sir  William  Wynne 
and  affirmed  on  appeal,  is  in  point.  The  testatrix  had  early  in  life 
been  afflicted  with  mental  disorder.  She  afterwards  was  supposed 
to  have  recovered  and  carried  on  a  house  and  establishment  of  her 
own  like  any  rational  person ;  but  for  several  months  before  mak- 
ing her  will  and  afterwards,  many  of  the  worst  symptoms  of  in- 
sanity were  manifested;  and  at  the  date  of  its  execution,  so  wild 
and  agitated  was  her  manner  that,  when  the  will  was  offered  for 
probate,  the  survivor  of  the  attesting  witnesses  deposed  quite  unfa- 
vorably as  to  the  sanity  of  the  testatrix.  The  attending  physician, 
it  appeared,  had  kept  his  patient  from  using  books  and  writing 
materials,  but  yielded  at  last  to  her  clamorous  importunity  for  pen, 

7.  F!upra,   §    68.    One   may   be  con-       when    competent,    should    stand.      13 
fined  in  an  insane  asylum,  from  time      N.  Y.  S.  255. 
to  time,  for  some  brain  disease,  and  7a.  144  N.  Y.  S.  174. 

released    as   his   condition    improves;  8.  >^upra,   §§   77,   78. 

and  the  will  of  such  a  person,  made  9.  Cartwright     v.      Cartwright,     1 

Pliillim.   122. 

12G 


CHAP.    VI.]  LUNACY   AND    MENTAL    DER.\NGEMT?^;T. 


112 


ink,  and  paper,  and  lessened  her  hands,  which  had  heen  tied  up; 
whereupon  she  sat  down  in  her  room  and  wrote;  tearing  up  several 
pieces  of  paper  and  throwing  them  into  the  fire,  pacing  the  room 
meanwhile  in  a  wild  and  disordered  manner.  The  will  was  writ- 
ten out  wholly  by  herself  and  she  placed  her  seal  to  it  very  care- 
fully. A  reasonable  inference  from  the  whole  testimony  appears 
to  have  been  ithat,  impressed  with  the  uncertainty  of  life  and  rea- 
son, she  had  earnestly  resolved  to  make  her  will,  and  that  such 
being  her  mental  purpose,  the  experiment  of  keeping  writing  ma- 
terials out  of  her  reach,  instead  of  soothing  her,  threw  her  into 
great  agitation.  At  all  events,  the  eminent  judge  sustained  the 
will,  remarking  very  properly  that  the  court  did  not  depend  on 
the  opinions  of  the  witnesses  but  on  the  facts  to  which  they  de- 
posed.-^ The  testament  in  question  was  perfectly  proper  and  nat- 
ural and  conformed  to  what  the  affections  of  the  testatrix  were 
proved  to  be  at  the  time,  and  her  executors  and  trustees  were  very 
discreetly  appointed.^ 


1.  Cartwright  v.  Cartwright,  1 
Phillim.    90. 

2.  lb.  Upon  the  rational  character 
of  the  present  testamentary  disposi- 
tion, Sir  Wm.  Wynne  dwelt  very 
strenuously  in  the  course  of  his  judg- 
ment "  The  strongest  and  best  proof 
that  can  arise  as  to  a  lucid  interval," 
he  observed,  "  is  that  which  arises 
from  the  act  iself  of  making  the  will. 
Tliat  I  look  upon  as  the  thing  to  be 
first  examined,  and,  if  it  can  be 
proved  and  established  that  it  is  a 
rational  act  rationally  done,  the 
whole  case  is  proved.  What  can  you 
do  more  to  establish  the  act?  be- 
cause, suppose  you  are  able  to  show 
the  party  did  that  which  appears  to 
be  a  rational  act,  and  it  is  his  own 
act  entirely,  nothing  is  left  to  pre- 
sumption in  order  to  prove  a  lucid 
interval.     Here  is  a  rational  act  ra- 


tionally done.  In  my  apprehension, 
where  you  are  able  completely  to  es- 
tablish that,  the  law  does  not  require 
you  to  go  farther."  This  statement 
he  fortifies  by  the  following  citation 
from  Swinburne:  "The  last  observa- 
tion is.  If  a  lunatic  person,  or  one 
that  is  beside  himself  at  some  times, 
but  not  continually,  make  his  testa- 
ment, and  it  is  not  known  whether 
the  same  were  made  while  he  was  of 
sound  mind  and  memory  or  no,  then 
in  case  the  testament  be  so  conceived 
as  thereby  no  argument  of  frenzy 
or  folly  can  be  gathered,  it  is  to  be 
presumed  that  the  same  was  made 
during  the  time  of  his  clear  and  calm 
intermissions,  and  so  the  testament 
shall  be  adjudged  good,  yea,  although 
it  cannot  be  proved  that  the  testator 
useth  to  have  any  clear  and  quiet  in- 
termission  at   all;    yet,   nevertheless. 


127 


LAW  OF   WILLS. 


[PAET    IL 


Other  instances,  English  and  American,  may  be  adduced  where 
the  will  of  a  person  habitually  insane,  has  been  sustained  as  the 
product  of  a  clear  and  calm  intermission  or  lucid  interval  on  proof 
most  especially  that  the  disposition  was  a  just  and  natural  one,  in 
all  respects.^  And  there  is  no  conclusive  reason  why  the  will  of 
a  person  habitually  insane  might  not  stand  under  such  circum- 
stances, even  though  he  executed  it  while  confined  in  a  lunatic 
asylum/ 

On  the  other  hand,  the  will  of  one  known  to  be  mentally  un- 
sound, has  been  refused  probate,  notwithstanding  circumstances  of 
scrupulous  care  on  his  part  in  framing  and  executing  the  instru- 
ment, where  the  disposition  appears  to  have  been  absurd,  weak,  or 
unnatural ;  as  in  the  case  of  an  insane  person  who  falls  indiscreetly 
in  love  with  a  chance  acquaintance,  and  straightway  makes  his  will 


I  suppose  that  if  the  testament  be 
wisely  and  orderly  framed,  the  same 
ought  to  be  accepted  for  a  lawful  tes- 
tament."    Swinb.  pt.  2,  §  3,  pi.  14. 

Cartwright  v.  Cartwright  was  well 
decided  upon  the  facts.  And  there 
were  other  strong  circumstances 
{vide  next  section)  which  strength- 
ened the  conclusion  in  favor  of  the 
will.  But  later  judges  have  ques- 
tioned very  properly  whether  Sir 
Wm.  Wynne  did  not  use  language 
somewhat  too  emphatic  in  approba- 
tion of  a  rational  will.  It  is  not  to 
be  supposed  that  the  learned  judge 
meant  to  assert  that  every  rational 
act  rationally  done  is  sufficient  to 
prove  a  lucid  interval.  It  is  the  par- 
ticular manner  in  which  tlie  act  was 
done  in  this  case  which  led  the  judge 
to  conclude  that  there  was  a  lucid 
interval.  Chambers  v.  Queen's  Proc- 
tor, 2  t'urt.  447,  by  Sir  H.  Jennor 
I'lint.  "  Tliougli  I  cannot  say  I  al- 
tugethor  agree  to  tiiat  dictum  (of  Sir 


Wm.  Wynne),  still  it  is  entitled  to 
great  weight,  and,  to  a  certain  extent, 
a  rational  act  done  in  a  rational 
manner,  though  not,  I  think,  '  the 
strongest  and  best  proof  '  of  a  lucid 
interval,  does  contribute  to  the  estab- 
lishment of  it."  Bannatyne  v.  Ban- 
natyne,  2  Rob.  472,  501,  by  Dr. 
Lushington.  See  also  Nichols  v. 
Binns,  1  Sw.  &  Tr.  239,  per  Sir  C. 
Cresswell ;  Gombault  v.  Public 
Admr.,  4  Bradf.  226,  239. 

3.  See  incident  mentioned  in  Mc- 
Adam  v.  Walker,  1  Dow.  178,  by  Lord 
Eldon;  1  Wms.  Exrs.  27;  Williams 
V.  Goude,  1  Hagg.  577;  Chandler  v. 
Barrett,  21  La.  Ann.  58;  Chambers 
V.  Queen's  Proctor,  2  Curt.  415; 
Gombault  v.  Public  Admr.,  4  Bradf. 
(N.  Y.)  226;  64  A.  520,  215  Penn.  St. 
314;   31  So.  64,  106  La.  442. 

4.  Such  was  the  case  in  Nichols  v. 
Binns,  1  Sw.  &  Tr.  239.  And  see 
supra,  §  81. 


128 


CliAP.    VI.]  LUNACY   AND   MENTAL    DERANGEMENT.  §1^3 

for  the  sake  of  bestowing  a  generous  legacy  upon  her.^  Wherever, 
in  short,  such  will  exhibits  a  decided  perversion  from  the  normal 
and  natural  disiposition,  thoughts,  aud  feeling  of  the  testator,  while 
in  his  right  mind,  there  is  good  reason  to  conclude  it  the  offspring 
of  insanity. 


6 


§  113.  Other  Circumstances  Favorable  to  Proof  of  Lucid  In- 
terval. 

There  may  be  other  circumstances  leading  strongly  to  the  con- 
clusion that  the  will  of  one  habitually  insane  which  is  presented 
for  probate,  was  made  in  some  clear  or  lucid  interval.  Thus,  in 
Cartwright  v.  Cartwriglit,  above  stated,  the  testatrix  not  only  made 
a  fair  and  rational  will,  but  prepared  it  wholly  by  herself  in  the 
seclusion  of  her  own  room ;  and  what  was  quite  remarkable,  wrote 
it  out  in  a  very  fair  hand,  free  from  confused  or  absurd  expres- 
sions of  any  kind,  and  without  a  blot  or  mistake  in  a  single  word 
or  letter.^  These  facts  bore  strongly  in  favor  of  the  testamentary 
act;  though,  had  the  will  itself  been  an  unjust  or  foolish  one,  the 
accurate  handwriting  might  have  gone  for  little.^  Whatever  shows 
a  careful  revision  or  preparation  of  the  draft  by  the  testator  him- 
self is  material  in  the  same  direction.* 

If,  again,  the  will  proportions  the  different  divisions  of  one's 
complex  estate  with  very  prudent  care  and  a  just  regard  to  all 

5.  Clarke  v.  Lear  (1791),  cited  in  structions  for  the  will,  and  corrected 
1  Pliillim.  90,  119;   1  Wins.  Exrs.  27.  the   draft   with    his   own    hand;    and 

6.  Beemer  v.  Beemer,  96  N.  E.  the  instrument  was  admitted  to  pro- 
1058,  252  111.  452;  Council  v.  May-  bate  notwithstanding  minor  errors 
hew,  55  So.  314  (Ala.).  But  cf.  §  77  shown,  such  as  reciting  his  own  age 
supra.  as    75,    when    it   was    really    77,   and 

7.  Cartwright  v.  Cartwright,  1  mistaking  the  order  in  which  two  of 
Phillim.    90.  the   daughters   were   born.      See    also 

8.  In  Clarke  v.  Lear,  supra,  the  Legg  v.  Myer,  5  Redf.  628,  where  it 
instrument  was  very  accurately  was  shown  that  the  testator  took  the 
written  by  the  testator,  and  yet  pro-  instrument  after  it  was  read  to  him, 
bate  was   refused.  and  read  it  himself,  pointing  to  cer- 

9.  Mairs  v.  Freeman,  3  Redf.  (N.  tain  words  which  at  first  he  was  un- 
Y.)    181,   is    a    case    where     it    was  able  to  decipher. 

shown  that  the  testator  drew  the  in- 

9  129 


§    115  I^W  OF  WILLS.  [PAUT    II.. 

the  proper  objects  of  one's  bounty,  this  goes  strongly  towards  prov- 
ing, at  least  temporary  sanity  in  the  testator;  for  it  shows  that 
his  mind  grasps  comprehensively  a  large  and  intricate  subject.^ 
Moreover,  if  reference  to  the  testator's  intentions,  before  his  mal- 
ady, shows  that  the  will  was  in  furtherance  of  intentions  he  had 
declared  while  positively  of  sound  mind,  this  may  corroborate  the 
theory  of  a  lucid  interval."  And  so,  too,  where  the  testator,  sub- 
sequent to  its  execution  makes  intelligent  recognition  of  the  will 
and  its  provisions  as  though  understanding  it  still  to  be  the  instru- 
ment which  its  face  purports.^ 

§  114.  Lucid  Interval  more  easily  established  in  Delirium,  etc., 
than  in  Habitual  Insanity. 
A  lucid  interval  is  more  easily  established  in  cases  of  delirium, 
such  as  a  fever  or  dissipation  produces,  or  where  fluctuations  arise 
from  temporary  excitement  or  from  periodicity  in  the  attacks  of 
the  disease,  than  in  cases  of  habitual  insanity.* 

§  115.  Proof  should  be  scrutinized  where  Mental  Disease  is  In- 
sidious and  Slow. 
In  general,  a  will  made  in  a  lucid  interval  may  be  valid;  but 
the  facts  establishing  intelligent  action  should  be  shown,  and  as 
already  stated,  the  nature  and  character  of  the  instrument  are  of 
much  importance  to  such  an  issue.  Where  a  disease  ultimately 
affecting  the  mind  was  insidious  and  slow  in  its  development,  and 
it  may  be  suspected  that  before  the  testamentary  act  the  patient 

1.  M'Adam  v.  Walker,  1  Dow,  178.  of   intimate  confidence  and   affection, 

2.  lb.;   (  oghlan  v.  rof,'lan,   1   Phill.  bore   in   favor   of   presuniinf^   a   lucid 
00.  interval   in   the   testator,   though   the 

3.  This    was    still  anotlier  circum-  court  weighed  all  the  testimony  very 
stance  shown   in   Cartwriglit  v.  Cart-  fairly. 

Wright,   1   Pliillim.   90.     In   Gnmbault  4.  Of  delirium,    in   connection   with 

V.    Public    Admr.,    4    Bradf.    226,     the  the  testamentary   act.  we  sliall    ppe:ik 

fact  tiiat  the  contest  was  between  the  more  fully  in  the  next  chapter.  Brog- 

State,   claiming   an    escheat,    on     the  den  v.  Brown,  2  Add.  44.');    Uombault 

one  hand,  and   parties,  on  the  other,  v.   Public   Admr.,  4   Bradf.  226,  239;. 

w)k>   stfHi.j   to   tlie   decedent   in   terras  Staples  v.  Wellington,  58  Me.  453. 

130 


CHAP.    VI.]  LUNACY   AND    MENTAL   DERANGEMENT.  §    US 

or  those  in  charge  of  him  apprehended  mental  derangement,  there 
should  be  a  careful  scrutiny  of  a  will  made  shortly  before  the 
symptoms  of  insanity  were  unmistakable.  Here  it  is  desirable  to 
learn  if  possil)Ie  whether  the  testamentary  act  in  question  was 
rational  and  natural  and  conformed  to  the  views  and  wishes  of  the 
party  when  mentally  sound  and  healthy.^ 

§  116.  Doubtful  Instances  of  Mental  Derangement;  Paralysis, 
Prostration,  etc. 

"  If  no  actual  derangement  or  mental  imbecility  be  found," 
observes  Mr.  Justice  Washington,  "  it  is  not  sufficient  per  se  to 
assign  a  cause  of  derangement  which  might  or  might  not  have 
produced  that  effect.  Paralysis,  for  instance,  is  sometimes  a  cause 
of  mental  derangement,  and  frequently  it  is  not.  If  attended  by 
apoplexy,  or  an  affection  of  the  nerves,  it  necessarily  affects  the 
mind ;  but  it  frequently  affects  only  the  muscles,  thereby  producing 
bodily  infirmity  alone,  and  leaving  the  mind  unimpaired.  If  the 
patient  survives  the  stroke  for  any  consider'able  length  of  time,  it 
may  in  general  be  concluded  that  it  was  simply  a  paralysis  affect- 
ing the  body  only."  ^ 

More  than  this,  it  may  b©  affi,rmed  that  great  intellecitual  and 
physical  weakness  or  prostration,  even  though  accompanied  by  a 
partial  failure  of  mind  and  memory,  is  not  of  itself  sufficient 
ground  for  setting  aside  a  will,  if  there  still  remains  sufficient 
mind  and  memory  to  bring  the  testator  within  the  rule  of  testa- 
mentary capacity  which  we  have  already  set  forth.''  And  whether 
this  weakness  or  prostration  arises  from  paralysis,  or  an  attack 
of  apoplexy,  or  heart  trouble,  or  any  other  cause,  the  cardinal 

5.  Grombault  v.  Public  Admr.,  4  nor  undue  influence  appears  in  proof. 
Bradf.    (K  Y.)    226.  6  Dem.    {N.  Y.)    123.     And  see  12  N. 

6.  Hoge  V.  Fisher,  1  Pet.  C.  C.  163.  Y.  S.  122.  the  case  of  a  testator  who 

7.  Supra,  §  68.  The  will  of  a  tes-  fainted  and  lost  consciousness, 
tatrix  of  feeble  health  and  nervous  through  feeble  action  of  the  heart, 
temperament,  subject  to  hysteria  and  then  slept  and  awoke,  feeling 
and  of  marked  personal  peculiarities  much  better,  and  executed  his  will, 
and  personal  prejudices,  may  be  sus-  See  also,  Campbell's  Will,  135  N.  Y. 
tained,  where  neither  insane  delusion  S.   1086. 

131 


I    llT  LAW  OF  WILLS.  [PAKT    II. 

principle  of  testamentary  capacity  is  always  the  same.*  One 
mig'lit  'by  a  stroke  of  paralysis  or  aj)oplexy  be  rendered  for  a  time 
unconscious,  and  incapable  of  mental  action ;  yet  the  mind  so 
commonly  rallies  from  a  first  shock  in  such  cases  that,  should  the 
patient  months  afterward  make  his  will,  habitual  and  continuous 
insanity  ought  not  to  be  presumed  to  the  disfavor  of  its  probate.* 
So,  too,  may  it  be,  where  one  suffers  great  pain  at  times,  during 
his  last  sickness.^ 

Where  one,  after  paralysis  or  some  enfeebling  disease,  atcends 
to  his  business  and  manages  his  property  with  reasonable  prudence 
and  judg-ment,  the  inference  of  his  renewed  testamentary  capacity 
must  be  very  strong.^ 

§  117.  The  Same  Subject  illustrated:    Mississippi  Case. 

Ill  a  Mississippi  will  case,  decided  in  1840,  insanity  as  devel- 
oped by  paralysis  was  at  issue.  Twelve  witnesses,  many  of  whom 
had  been  acquainted  with  the  condition  of  the  testator's  mind  from 
March,  when  he  was  afSicted  with  a  paralytic  attack,  up  to  the 
day  previous  to  the  execution  of  his  will  in  December,  testified 
to  his  insanity,  and  stated  the  health  and  conduct  of  the  testator 
upon  which  they  based  their  opinions :  namely,  palsy  in  the  right 
side,  leg,  and  face;  a  fondness  for  relating  old  anecdotes  and 
scenes;  forgetfulness  of  recent  events;  miscalling  the  names  of 
men  and  things ;  disconnection  of  ideas  in  conversation,  and  fre- 
quent transitions  from  one  subject  to  another;  the  giving  contra- 
dictory orders  and  shortly  denying  having  given  them ;  impedi- 
ment in  speech  and  irritability  of  temper,  and  incompetency  to 
transact  business.  Four  of  these  witnesses  were  physicians,  three 
of  whom  had  attended  the  testator  from  time  to  time,  and  ex- 
pressed the  opinion  that,  from  the  character  of  the  deceased,  the 
testator  could  not  have  had  a  lucid  interval.     Five  witnesses,  on 

8.  Sec  Jamison's  Will,  3  Houst.  1.  Blake  v.  Rourke.  74  Iowa,  519, 
108,  and  other  cases  cited  in  Hall  v.  38  N.  W.  392;  Benjamin's  Will,  136 
Don{?herty,   5  Houst.   43.5.  N.  Y.  S.  1070. 

9.  Iri.sh  V.  Newell,  62  111.   196,   14  2.  See  1  Con.   (N.  Y.)    373. 

Am.    Rep.    79.  ' 

132 


CHAP.    VI.]  LUNACY   AND   MENTAL  DERANGEMENT.  §    118 

the  other  hand,  the  draftsman  of  the  will,  and  the  subscribing 
witnesses  to  it,  declared  their  opinions  to  be  that  the  testator  was 
of  sound  and  disposing  mind  when  he  executed  the  will.  He  had 
walked  the  distance  of  a  mile  on  that  very  morning.  Some  of 
these  latter  witnesses,  who  had  seen  the  testator  some  time  previ- 
ously, testified  that  an  improvement  in  his  health  and  mind  had 
been  going  on.  It  was  in  proof  that  he  conversed  rationally  and 
sensibly  for  four  hours,  on  the  day  the  will  was  executed,  without 
making  an  irrational  remark ;  gave  directions  about  his  business ; 
dictated  the  will ;  had  it  read  to  him,  and  portions  of  it  twice ; 
conversed  of  early  scenes ;  did  not  miscall  names  nor  talk  in- 
coherently, but  conversed  intelligently  and  rationally  about  his 
own  business,  the  monetary  system  of  the  country^  and  other  sub- 
jects. It  was  the  opinion  of  all  these  witnesses  that  he  was  en- 
tirely competent  on  that  occasion,  to  transact  any  of  his  own  busi- 
ness, including  the  business  in  question.  He  spoke  of  an  improve- 
ment in  his  health  and  of  its  having  been  thought  that  he  was 
insane ;  expressed  gratification  at  seeing  so  many  of  his  old  friends 
on  that  occasion ;  said  he  was  about  to  arrange  his  business  and 
wished  them  to  converse  with  him  and  see  if  he  were  not  of  sound 
mind  and  competent,  Weighing  all  this  evidence  carefully,  the 
judge  of  probate  held  that  the  testator  was  of  sound  and  disposing 
mind,  and  admitted  the  will  accordingly ;  and  upon  appeal,  this 
judgment  w^as  sustained.^ 

§  118.  The  Same  Subject:  Other  Ilustrations:  Epilepsy,  Apo- 
plexy, etc. 
It  is  more  recently  held  in  Illinois,  that  proof  of  periodical 
epileptic  attacks,  attended  with  convulsions,  loss  of  consciousness 
and  the  other  usual  sequences  of  such  attacks,  or  proof  of  tempo- 
rary pneumonia  supervening  the  attack  wntli  fever  and  delirium, 
is  not  such  proof  of  insanity  as  to  create  a  presumption  of  its 
continuance  until  rebutted  by  proof.^ 

3.  Brock      V.      Luckett.      4      How.       (1880).     And  see  next  chapter;  God- 
(Miss.)    459.  den  v.  Burke,  35  La.  Ann.  160. 

4.  Brown    v.    PJggin,    94    III.    560 

133 


119 


LAW  OF  WILLS. 


[part   II. 


Epileptic  fits  are  often,  perhaps  usually,  very  sudden,  and  in 
the  earlier  stages  of  the  malady  more  especially,  one  may  retain 
his  faculties  to  the  very  moment  of  the  attack.  Upon  all  the  evi- 
dence, therefore,  a  will  was  sustained  in  Wisconsin  where  the 
person  having  had  an  epileptic  fit  one  day,  sent  for  a  priest  the 
next,  and  in  a  few  minutes  after  executing  the  instrument  intelli- 
gently was  seized  with  another  fit,  and  died  a  day  or  two  after- 
wards.^ 

§  119.  Mental  Condition  nearly  Contemporaneous  with  the  Will, 
etc. 
Where  one's  mental  condition  appeared  t-o  his  medical  attend- 
ant suitable  for  the  testamentary  act,  or  the  reverse,  shortly  be- 
fore or  after  the  will  was  made,  testimony  to  this  purport  should 
carry  great  weight.''  But  after  all,  the  real  point  at  issue  upon 
which  such  testimony  bears,  is  the  mental  condition  and  the  state 
of  surrounding  circumstances,  at  the  precise  time  of  the  testa- 
mentary act.^ 


5.  Lewis's      Will.      51      Wis.      101       the  will  was  sustained,  notwithstand- 


(1880).  This  was  certainly  a  very 
close  case,  as  there  was  reason  for 
believing  tliat  the  decedent  Avas  in  a 
semi-comatose  and  nearly  uncon- 
scious state  when  the  will  was 
signed;  but  it  was  drawn  up,  at 
least,  under  his  intelligent  direction. 

See,  further,  Foote  v.  f^tan- 
ton,  1  Deane  (N.  Y. ),  19  (an  extreme 
ca.se  where  the  will  of  a  person  subject 
to  epileptic  fits  was  admitted  to  pro- 
bate) ;  Legg  V.  Myer,  5  Redf.  (N. 
Y.  628.  In  Andrews,  Re,  33  N.  J.  Eq. 
514,  the  will  of  a  woman  made  in  the 
later  .stages  of  pulmonary  consump- 
tion was  sustained  against  expert 
testimony  tending  to  show  that  medi- 
cines such  as  she  used  would  affect 
the  brain. 

In   McKean's  Will.  GG  N.  Y.  S.  44, 


ing  hemiplegia,  Bright's  disease,  etc. 
Extreme  physical  suffering  does  not 
incapacitate,  as  where  one  cries  from 
suffering  pain  when  the  will  is  exe- 
cuted; though  crying  without  much 
provocation  is  a  fact  which  might 
bear  unfavorably  in  the  will  of  a 
man,  where  mental  unsoundness  was 
at  issue.  Beemer  v.  Beemer,  96  N.  E. 
1058,  252  111.  452. 

6.  Dyer  v.  Dyer,  87  Ind.  13.  Es- 
pecially would  this  hold  true  of  an 
attending  physician  between  whose 
regular  visits,  not  distant,  the  will 
was  made  and  executed.  Gombault 
V.  Public  Admr.,  4  Bradf.  (N.  Y.) 
22G. 

7.  Harden  v.  Hays,  9  Ponn.  St. 
151;  Gangwere's  Estate,  14  Penn. 
St.  417,   53  Am.  Dec.  554;    16  Oreg. 


134 


■CHAP. 


VI.] 


LUNACY  AND   MENTAL   DERANGEMENT. 


120 


§  120.  Suicide  not  Conclusive  of  Insanity. 

Suicide  committed  by  the  testator  soon  after  making  the  will 
is  not  conclusive  evidence,  therefore,  of  insanity  at  the  time  when 
the  will  was  made ;  though  as  a  fact  in  connection  with  other  proof 
from  which  prior  mental  derangement  might  be  inferred  to  the 
extent  of  incapacity,  it  should  not  be  ignored.^  In  a  leading  case 
under  this  head,  the  testator  actually  committed  suicide  on  the 
morning  after  the  day  on  which  he  made  his  will;  and  yet  the 
will  was  admitted  to  probate.'  Suicide  is  by  no  means  the  act  of 
a  person  necessarily  insane,  but  the  murder  of  one's  self,  like  the 
murder  of  another,  may  proceed  from  a  sane  and  deliberate  pur- 
pose; hence  the  chief  value,  of  this  proof  consists  in  the  corrobora- 
tion it  affords  in  a  given  ease,  when  taken  with  other  facts  and 
symptoms,  to  the  theory  of  mental  soundness  or  unsoundness  at 
the  date  of  executino-  the  will.^ 


127,  18  P.  6;  Dole's  Estate,  81  P. 
534,  147  Cal.  188.  And  see  the  dis- 
crimination exercised  by  the  court  in 
this  respect  in  Brook  v.  Luckett,  4 
How.  (Miss.)  459,  as  stated  supra, 
§   117. 

8.  Taylor  Med.  Jur.  680,  681;  1 
Hedf.  Wills,  116;  Burrows  v.  Bur- 
rows, 1  Hagg.  109;  Duffield  v.  Mor- 
ris, 2  Harring,  375;  Chambers  v. 
Queen's  Proctor,  2  Curt.  415;  God- 
den  V.  Burke,  35  La.  Ann.  160;  8  N. 
Y.  S.  297;  Koegel  v.  Egner,  54  N.  J. 
Eq.  623,  35  A.  395;  Tozer  v.  Jack- 
son, 164  Penn.  373,  30  A.  400;  Roche 
V.  Nason,  77  N.  E.  1007;  Chevaliier's 
Estate,  113  P.  130,  159  Cal.  161; 
Wilkinson  v.  Service,  94  N.  E.  50, 
2491  111.  146. 

9.  Chambers    v.    Queen's    Proctor, 

135 


supra.  The  facts  were  similar  in 
Duffield  V.  Morris,  supra. 

1.  A  suicide's  will  is  entitled  to 
probate,  notwithstanding  the  old  law 
of  forfeiture.  Bailey,  Goods  of,  2 
S.  &  T.  156. 

A  testator  showed  unjust  sus- 
picions of  his  wife  and  children 
amounting  to  an  insane  delusion, 
about  the  time  he  made  his  will  and 
affecting  his  disposition  of  property. 
These  suspicions  finally  culminated 
in  his  killing  his  wife  and  inflicting 
mortal  injuries  on  himself.  The  will 
was  denied  probate.  Kahn's  Will.  1 
Con.  (N.  Y.)  510.  Suicide  committed 
after  executing  the  will  is  evidence 
tending  to  show  insanity.  Frary  v. 
Gusha,  59  Vt.  257,  9  A.  549. 


§    121  LAW  OF  WILLS.  [PAET    II. 


CHAPTER  VII. 

DELIRIUM_,   DRUNKENNESS^    AND   DEMENTIA. 

§  121.  Delirium  of  Disease  and  its  Symptoms. 

WLat  we  call  delirium,  or  the  delirium  of  disease,  is  a  form  of 
mental  aberration  incident  to  fevers  and  sometimes  to  the  last 
stages  of  chronic  diseases.  It  is  mostly  of  a  subjective  character, 
maintained  by  the  inward  activity  of  the  mind  rather  than  by  out- 
ward impressions.  But  it  resembles  general  mania  or  ordinary 
insanity  so  closely  that  the  patient  will  often  be  removed  to  an 
insane  asylum  for  treatment;  and,  indeed,  the  mental  perversion 
which  results  is  so  nearly  identical,  in  the  two  cases,  that  we  can 
do  little  more  than  ascribe  the  delirium  of  disease  to  the  march 
of  a  bodily  disorder  which  storms  the  brain,  and  trust  that  as  the 
fever  subsides  and  health  returns,  the  scattered  senses  will  rally, 
as  after  a  tempest,  and  reason  reassume  her  supremacy. 

This  febrile  delirium  comes  on  gradually,  as  medical  experts 
have  noticed,  being  first  manifested  by  talking  while  asleep  and 
by  a  momentary  forgetfulness  of  persons  and  things  in  waJring. 
Fully  aroused,  the  mind  becomes  calm  and  tranquil,  and  only  as 
he  becomes  drowsy  does  the  patient  retire  within  himself  again 
to  encounter  the  wild  troop  of  fantastical  images  which  fatigue 
instead  of  resting  the  disordered  brain.  Gradually  the  mental 
disturbance  becomes  more  intense,  the  intervals  of  consciousness 
diminish  and  then  disappear,  and  those  at  the  bedside  may  fathom 
to  some  extent  from  his  raving,  incoherent  talk  what  apparitions 
his  mind  is  contending  with.  The  scenes  and  events  of  the  past 
are  vividly  pictured ;  nor  is  it  unusual  at  this  stage  for  the  sick 
to  recall  some  lost  acquirement  or  talk  in  some  forgotten  language. 
As  one  returns  to  health  and  consciousness,  however,  scenes  and 
sensations  like  these,  on  the  whole  painful  and  exhausting,  fade  in 
vividness,  the  tumult  of  the  imagination  subsides,  sleep  is  more 
Cjuiet  and  refreshing,  the  judgment  works  out  of  the  bewildering 

130 


CHAP.    VII.]  DELIRIUM^  DRUNKEI^NESS^  ETC.  §    122 

fancies ;  and  as  convalescence  advances,  the  patient  remembers  but 
vaguely  the  stormy  scene  through  which  he  has  passed.^ 

Such  is  the  usual  course  of  febrile  delirium ;  but  the  symptoms 
may  detach  themselves,  so  to  speak,  from  the  bodily  disorder,  and 
assume  a  chronic  or  permanent  form ;  in  which  event  the  delirium 
passes  into  the  darker  phase  of  maniacal  delirium  and  by  a  fixed 
disarrangement  of  the  mental  conceptions  produces  insanity,  that 
painful,  habitual  state  of  incapacity,  whose  legal  consequences  are 
elsewhere  discussed.  To  the  delirium  of  disease  commonly  suc- 
ceeds a  stupor,  where  the  disease  is  to  end  fatally ;  but  often  will 
the  mind  recover  a  calm  and  quiet  condition  for  a  considerable 
space  before  death. ^ 

§  122.  Delirium  Incapacitates;  Effect  of  Lucid  Intervals. 

It  stands  to  reason  that  the  will  of  a  person,  made  while  he  is 
delirious  and  quite  out  of  his  mind,  is  null  if  not  a  legal  absurdity. 
But  wills  are  often  made  in  the  last  illness  of  such  sufferers  and 
during  the  period  when  one  throws  off  his  feverish  delirium  like 
a  person  waking  from  a  nightmare.  Where  the  patient  is  con- 
valescent, or  even  in  the  earlier  stages  of  a  febrile  disease  which 
after  much  fluctuation  ends  fatally,  the  mind  may  no  doubt  be 

2.  Ray  Med.  Jur.  364 ;  1  Wharton  s?ene  words  which  may  have  escaped 
&  Stille  Med.  Jur.  3d  Ed.  §  702  et  him  during  the  delirium.  The  pa- 
seq.  tient,  on  the   contrary,  in  whom  the 

3.  1  Redf.  Wills,  92;  Ray  Med.  Jur.  insanity  is  confirmed,  will  not  ad- 
346;  1  Wharton  &,  Stille  Med.  Jur.  mit  that  he  was  delirious.  He  sus- 
§  703.  In  1  Wharton  &  Stille  the  tains  the  errors  of  his  imagination 
distinctive  symptoms  are  traced  out,  and  takes  them  for  realities.  The 
at  some  length,  as  between  febrile  and  hallucinations  and  delusions  of  all 
insane  delirium.  "  In  ordinary  dis-  sorts  which  he  has  felt,  and  which 
eases  the  sick  person  attaches  him-  still  beset  him,  fortify  him  in  his 
self  with  happiness  to  everything  madness.  Still  more,  in  this  he  sys- 
that  tends  to  recall  him  to  existence.  tematizes  his  delirium,  and  whatever 
He  hears  with  emotion  of  the  difTer-  intellectual  energy  is  left  is  employed 
ent  stages  of  his  disease,  and  of  the  by  him  in  establishing,  upon  the  basis 
delirium  which  was  its  consequence;  of  a  desperate  logic,  motives  for  the 
he  speaks  often  of  its  causes,  deplores  new  existence  which  he  is  just  corn- 
its  effects,  and  makes  innumerable  mencing."  1  Wharton  &  Stille,  §  703. 
excuses    for    any    malignant    or    ob- 

137 


§    123  LAW   OF  WILLS,  [PART    11. 

quite  clear  in  tlie  intervals  of  strange  dreaminess  and  rhapsody. 
The  courts  distinguish,  therefore,  where  delirium  only  is  set  up 
in  opposition  to  a  will  presented  for  probate,  and  the  case  of  fixed 
mental  derangement  or  habitual  insanity.  Delirium,  Sir  John 
Xicholl,  an  eminent  authority  in  probate  law,  has  observed,  is  a 
fluctuating  state  of  mind  created  by  temporary  excitement,  in  the 
absence  of  which,  to  be  ascertained  by  the  patient's  appearance, 
the  patient  is  most  commonly  really  sane.  Hence,  as  also,  indeed, 
from  their  greater  presumed  frequency  in  most  instances  of  deli- 
rium, the  probabilities,  a,  priori,  in  favor  of  lucid  intervals  are  far 
stronger  in  a  case  of  delirium  than  in  one  of  permanent  proper 
insanity ;  and  the  difficulty  of  proving  a  lucid  interval  is  less,  in 
the  same  exact  proportion,  in  the  former,  than  it  is  in  the  latter 
case,  and  has  always  been  so  held  in  the  English  courts  of  probate.* 
There  are  American  decisions  which  support  the  same  conclu- 
sion ;  ^  for  delirium  caused  by  a  fever  is  most  commonly  temporary 
in  its  character,  like  the  fever  itself. 

§  123.  The  Same  Subject. 

But  while  delirium  has  usually  the  temporary  character  thus 
noticed,  it  sometimes,  by  changes  almost  imperceptible,  passes,  as 
we  have  seen,  into  the  fixed  type  of  mental  derangement.  And  the 
testamentary  transaction  may  still  invite  a  careful  inspection  of 
all  the  attendant  circumstances  where  the  testator  never  wholly 
recovered  from  sickness,  so  as  to  manifest  his  approval  of  the 

4.  Sir  John  Nicholl,  in  Brogden  v.  parently  rational,  as  he  is  in  his  visi- 

Brown,  2  Add.  445.     "  In  cases  of  per-  ble  raving  fits.     But   the  apparently 

manent  proper  insanity,  the  proof  of  a  rational    intervals   of   persons   merely 

lucid    interval    is   matter   of   extreme  delirious  for  the  most  part  are  really 

difTiculty,  as  the  court  has  often  had  such."     lb.     See  also  Dimes  v.  Dimes, 

occnsion     to   ob.serve,     and    for     this,  10  Moore  P.  C.  422,  426,  per  Dr.  Lush- 

among  other  reasons,  namely,  that  the  ington;  supra,  §  109. 

patient  so  alTected  is  not  unfrequently  5.  Staples    v.    Wellington,    58     Mo. 

rational   to   all   outward   appearance,  453,  459;  Hix  v.  Whittemore,  4  Met. 

without    any    real    abatement    of    his  545,  546,  per  Dewey,  J.;  Gomb;iult  v. 

malady;    so   that,   in   trutli    and   sub-  Public  Admr.  4   Bradf.    (N.  Y.)    226, 

Btance,  ho  is  just  as  insane,  in  his  ap-  239;  Clark  v.  Ellis,  9  Or.  128. 

138 


CHAP.    VII.]  DELIRIUM,  DRUNKENNESS^  ETC.  §124 

executed  instniment  by  the  obvious  act  of  keeping  it  intact  among 
his  papers  after  resuming  an  active  contact  with  affairs,  but,  on 
the  contrary,  grew  gradually  worse  and  died.  Here  and  at  the 
threshold  of  death  occurs  a  period  when  the  mental  condition  be- 
comes fitful  and  untrustworthy.  The  patient  might  be  calm  and 
answer  questions  with  tlie  same  sort  of  relevancy,  while  a  close 
examination  would  reveal,  notwithstanding,  a  drowsy  and  dreamy 
condition  of  the  mind,  quite  unfit  for  grappling  with  the  relations 
of  persons  and  things  so  as  to  perform  with  due  consciousness  the 
testamentary  act. 

Here,  as  elsewhere,  'the  standard  of  testamentary  capacity 
should  be  applied,  and  this  inquiry  should  solve  the  doubt:  namely, 
whether  the  patient,  besides  exercising  his  own  volition,  has  suffi- 
cient intelligence  to  comprehend  the  condition  of  his  property,  his 
relations  to  those  who  are  or  naturally  might  be  the  objects  of  his 
bounty  and  to  understand  the  provisions  of  the  instrument.^ 

§  124.  Delirium  Tremens,  and  Drunkenness  or  Intoxication  in 
General. 

Delirium  tremens  is  a  form  of  mental  disorder  incident  to 
habits  of  intemperance,  whose  symptoms  are  generally  indicated 
by  a  slight  tremor  and  faltering  of  the  hands  and  limbs,  restless 
anxiety,  disturbed  sleep,  and  a  loss  of  appetite.  As  in  the  case  of 
fever,  uneasy  slumber  begets  painful  dreams,  which  pass  with 
rarer  intervals  into  an  exhausting  delirium.  Refreshing  sleep, 
aided,  by  good  medical  treatment,  may  operate  a  cure,  but  the 
disease  sometimes  ends  fatally.  A  more  positive  mental  derange- 
ment is  found  to  occur  not  unfrequently  in  connection  with  in- 
temperate habits ;  thus,  hard  alcoholic  drinking  may  produce  a 
paroxysm  of  maniacal  excitement  or  a  host  of  hallucinations  and 
delusions;  but  most  commonly  after  a  few  days'  abstinence,  one's 
ordinary  mental  condition,  though  perhaps  feeble,  will  ensue.     In 

6.  Surpa,  §  68.  The  burden  of  proof  pneumonia  closely  preceded  death, 
lies  to  establish  a  lucid  interval  for  Coughlin's  Will,  68  N.  J.  Eq.  582,  A. 
making    a   will,    where   delirium   and      876. 

139 


§    125  LAW  OF  WILLS.  [PART    II. 

the  lighter  stages  of  intoxication,  however,  alcoholic  drink  or  some 
drug  like  opium  will  produce  a  condition  of  lethargy  or  excite- 
ment, as  the  case  may  be,  which,  variable  by  turns  or  temperament^ 
steals  away  the  faculties  for  the  time  being,  and  yet  leaves  it 
often  very  doubtful  whether  or  not  a  sound  and  conscious  mind 
still  operated  behind  the  mask  of  folly. 

While  such  delirium  or  derangement  lasts,  discretion  is  over- 
whelmed in  a  temporary  madness,  and  no  testamentary  disposi- 
tion committed  under  its  influence  can  avail;  provided,  of  course, 
that  one's  mental  condition  fails  under  the  tests  which  apply  to 
other  delirium  and  other  forms  of  insanity.  The  real  difficulty  is 
found  where  the  less  positive  disorder  of  the  faculties,  which  re- 
sults from  mere  intoxication,  has  to  be  considered  in  this  connec- 
tion.^ For  the  incapacity  produced  by  drink  is  more  strictly  tem- 
porary than  tke  delirium  of  disease,  and  when  the  fit  is  off,  reason 
acts  as  before.^ 

§  125.  The   Same    Subject:     Drunken    Habits   may   impair   the 
Reason. 
Aside  from  the  raging  delirium  of  which  we  have  spoken,  and 

7.  Taylor  Med.  Jur.  656;   1  Whart.  Swinburne  thus  discriminates  upon 

&  Stille,  §§  201,  639;   Ray  Med.  Jur.  the    subject   of   testamentary    incapa- 

438.     Drunkenness  and  delirium  tre-  city  as  affected  by  drunkenness.     ''  He- 

mens  are  more  commonly  considered  that  is  overcome  by  drink,  during  the 

as    affecting    resposibility    for    crime.  time  of  his  drunkenness  is  compared 

In  general,  insanity  which  is  produced  to    a   madman,    and    therefore,    if    he 

by   delirium  tremens  affects   civil  re-  make  his  testament  at  that  time,   it 

sponsibility  in  the  same  way  as  in-  is  void  in  law,  which  is  to  be  under- 

sanity  produced  by  any  other  cause;  stood,  when  he  is  so  excessively  drunk 

though  here  it  is  observable  more  posi-  that  he  is  utterly  deprived  of  the  use 

tively  than  elsewhere,  that  the  insan-  of   reason   and  understanding;    other- 

ity   was  brought   on   by   the   person's  wise,  if  he  be  not  clean  spent,  albeit 

own       misconduct — a       consideration  his  understanding  is  obscured  and  his 

which,   in  fact,   appears   to  affect  the  memory   troubled,  yet  he  may   make 

rule  of  legal  responsibility  as  defined  his    testament,    being    in   that   case." 

in  cases  of  crime  committed   during  Swinb.  pt.  2,  §  6. 

mere    intoxication.      See    Wharton    &  8.  1    Rcdf.    Wills,    163;    Ayrey    v. 

Stille,  supra;  5  Mason,  28;    1  Curt.  Hill,  2  Add.  206.    Insanity,  it  is  said, 

C.  C.  1.  is  often  latent,  but  ebriety  never.     lb. 

140 


CII.1P.    VII.  DELIRIUM,  DRUNKENNESS,  ETC.  §    126 

which  is  found  so  often  temporary,  a  long-continued  habit  of  inordi- 
nate indulgence  in  the  use  of  stimulants  may,  in  certain  tempera- 
ments, produce  another  sort  of  insanity.  The  mind  becomes  grad- 
ually impaired,  the  memory  fails,  and  the  drunkard  sinks  into  that 
sottish  condition  where  his  faculties  are  stupefied,  and  he  may  be 
pronounced  utterly  incapable  of  managing  his  own  affairs.®  Vic- 
tims of  intemperance  like  these  are,  under  some  of  our  local  stat- 
utes, subject  to  guardianship,  where  their  estates  might  otherwise 
bo  squandered ;  for  were  it  otherwise,  testament  or  no  testament 
would  be  of  little  consequence.  Sometimes,  but  not  invariably, 
a  permanent,  fixed,  and  incurable  insanity  is  developed  by  the 
drunken  habit,  especially  if  other  causes  predispose  the  mind  in 
that  direction.^ 

But  ordinarily  this  is  not  so  when  other  predisposing  causes  are 
absent,  for  the  mind  of  the  most  confirmed  inebriate  is  generally 
capable  of  transacting  common  business  in  its  sober  moments. 

§  126.  When  Intoxication  invalidates  a  Will,  and  the  Reverse. 

The  fact  that  the  testator  was  intoxicated,  or  under  the  in- 
fluence of  some  drink  or  drug  at  the  itinie  he  made  his  will,  does 
not  of  itself  avoid  the  disposition,  if  the  intoxication  or  stimulus 
does  not  prevent  him  from  comprehending  intelligently  what  he 
is  doing.^     Nor  is  habitual  drunkenness  or  the  frequent  and  in- 

9.  Starret  v.  Douglas,  2  Yeates,  48;  ham,  56  Penn.  St.  370.    And  see  supra, 

Duffield   V.    Morris.    2    Harring.    375,  §  81. 

383.     And  see  M'cSorley  v.  McSorley,  2.  Peck  v.  Gary,  27  N.  Y.  9;  Gard- 

2  Bradf.  (N.  Y.)  188.  ner  v.  Gardner,  22  Wend.  526;  Pierce 

1.  A     will     made     by     a     habitual  v.   Pierce,    38   Mich.   412;    Andress   v. 

drunkard  while  subject  to  a  commit-  Weller,  2  Green  Ch.  604;  Kay  v.  Hol- 

tee  or  guardian  is  not  for  that  reason  loway,  7  Baxt.  575;   57  Cal.  274;   49 

void;    but,    at    most,    th«re    is    only  La.  Ann.  1376,  22  S.  394;  4  Dem.  (N. 

prima  facie  evidence  of  incapacity  af-  Y.)    501;   Frost  v.  Wheeler,  43  N.  J. 

forded  by  the  appointment  of  a  com-  Eq.  573,  12  A.  612,  127  Penn.  St.  269, 

mittee  or  guardian;  nor  does  the  rec-  18  A.  10,  45  N.  J.  Eq.  573.     That  the 

ord  always  furnish  even  prima  fo/oie  testator  had  delirium  tremens  was  an 

evidence.      Lewis   v.   Jones,   50   Barb.  element    in.  proof    of    incapacity    in 

645;  57  Cal.  529;  Leckey  v.  Cunning-  Edge  v.  Edge,  38  N.  J.  Eq.  211.     But 

141 


126 


LAW  OF  WILLS. 


[part   II» 


jurious  use  of  ardent  spirits  or  dnigs  of  itself  sufficient  to  in- 
validate a  will,  even  though  the  person  so  addicted  may  have  acted 
like  a  madman  while  intoxicated.^  For  the  state  of  mind  at  the 
time  of  executing  the  will  in  question  is  the  material  issue;  and 
il  the  testator  be  then  in  a  condition  to  understand  what  he  is 
about,  his  capacity  is  presumed.* 

On  the  other  hand,  the  wills  of  those  far  gone  in  intemperate 
habits  should  be  watchfully  regarded ;  for  such  persons  are  even, 
more  liable  to  imposition  in  transactions  of  this  kind  than  to  dis- 
pose irrationally  without  dictation.  If  the  mind  is  not  clouded 
simply,  but  is  actually  deprived  of  reason  or  volition, —  if,  in 
other  words,  whether  by  delirium  or  besotted  faculties,  or  from 
any  other  cause  the  person  at  the  time  of  executing  the  will  is 
mentally  incapacitated,  according  to  the  usual  tests, —  his  will  is 
not  a  valid  one.^  AYhat  is  here  said  of  intoxication  or  drunken- 
ness, applies  not  only  to  the  use  of  spirituous  liquors,  but  to  the 
opium  or  morphine  habit.^ 


delirium  tremens  may  pass  off  and 
leave  the  person  sane  and  sensible,  so 
that  his  will,  if  made  without  undue 
influence,  should  operate.  Handley  v. 
Stacey,  1  F.  &  F.  574. 

3.  Hight  V.  Wilson,  1  Dall.  94; 
Temple  v.  Temple,  1  H.  &  M.  476. 

4.  Peck  V.  €ary,  27  N.  Y^  9,  84  Am. 
Dec.  220;  Pierce  v.  Pierce,  38  Mich. 
412;  Fluck  v.  Rea,  51  N.  J.  Eq.  233, 
639,  27  A.  636,  30  A.  430;  52  A.  690; 
Martin  v.  Bowdern,  59  S.  W.  227,  158 
Mo.  379;  Schluser's  Estate,  47  A.  966, 
198  Penn.  81,  55  A.  24,  205  Penn. 
455;  Baker  v.  Baker,  67  N.  E.  410, 
202  111.  595;  166  Ind.  25,  76  N.  E. 
755;  Weatherall  v.  Weatherall,  115 
P.  1078,  63  Wa.sh.  526. 

6.  Gardner  v.  Gardner,  22  Wend. 
526;  DufTield  v.  Morris,  2  Barring. 
375;    Temple   v.   Temple,   1   H.   &  M. 


476;  Barrett  v.  Buxton,  2  Aiken,  167; 
Julke  V.  Adam,  1  Redf.  (N.  Y.)  454;. 
cases    supra. 

6.  The  will  of  a  testatrix  was  sus- 
tained in  a  case  notwithstanding  she 
was  shown  to  have  been  addicted  to 
the  use  of  morphine;  it  appearing 
that  when  not  under  the  influence  of 
morphine  her  mind  was  clear  and  that 
she  made  her  will  accordingly.  Frost 
V.  Wheeler,  43  N".  J.  Eq.  573,  12  A. 
612.  But  the  court  justified  a  con- 
test of  the  will  where  such  habits  ex- 
isted and  ordered  the  costs  of  litiga- 
tion paid  from  the  estate.  lb.  As 
to  morphine,  see  further,  Bush  v. 
Lisle,  89  Ky.  393,  12  S.  W.  762;  53 
A.  690,  64  N.  J.  Eq.  715;  Whitsett 
V.  Belue,  54  So.  C77,  172  Ala.  256; 
Naylor  v.  McRuer,  144  S.  W.  772, 
248   Mo.  423. 


142 


CHAP.    VII.  DELIKIUM,  DRUNKENNESS,  ETC.  §    128 

§  127.  Burden  of  Proof,  etc.,  where  Drunkenness  is  alleged. 

Where  drunkenness  is  relied  upon  as  establishing  incapacity, — 
not  habitual  and  fixed  insanity,  but,  at  the  most,  habitual  intoxi- 
cation,—  the  burden  of  proving  its  existence  at  the  time  of  exe- 
cuting the  will  rests  usually  upon  the  contestants.^  Habitual 
drunkenness  cannot  alone  in  proof  overthrow  an  adult's  will.  jSTor 
is  the  effect  of  drunkenness  on  the  testator's  capacity  in  such  a 
contest  a  question  for  experts,  or  dependent  upon  proof  of  subse- 
quent acts  and  conduct,  but  it  depends  on  common  obeen^ation  and 
th'^  facts  of  the  particular  case  at  and  about  the  time  of  the  trans- 
action.^ 

All  that  need  appear,  therefore,  in  order  to  sustain  the  will,  is 
the  absence  of  intoxication,  at  the  time  of  making  it,  in  any  such 
degree  as  would,  by  the  usual  tests,  vitiate  the  disposition.*  If 
the  testator  was  at  the  time  capable  of  knowing  what  he  was  about, 
it  is  to  be  presumed  that  he  did  know,  and  that  the  disposition 
was  his  voluntary  and  intelligent  act.  Where  one's  indulgence 
has  produced  habitual  and  fixed  derangement  of  the  reason,  proof 
of  a  lucid  interval  or  a  return  to  the  same  condition  would,  under 
the  general  rule,  be  needful ;  but  otherwise,  the  law  infers  readily, 
in  the  absence  of  evidence  to  the  contrary,  that,  though  intoxicated 
sometimes  to  madness,  one  was  in  his  right  mind  when  he  made 
his  last  testament.-' 

§  128.  The  Rule  of  Testamentary  Capacity  in  Drunkenness  illus- 
trated. 

How  strongly  our  courts  incline  in  these  times  to  sustain  a  just 
and  natural  will,  even  where  the  testator  is  admitted  to  be  a  con- 
firmed drunkard,  is  illustrated  by  some  of  the  modern  cases.     In 

7.  Andress  v.  Weller,  2  Green  Ch.  1.  Ayrey  v.  Hill,  2  Add.  206;  Gard- 
604,  608;  Lee  v.  Case,  46  N.  J.  Eq.  ner  v.  Gardner,  22  Wend.  526;  Peek: 
193,  18  A.  525.  v.  Gary,  27  N.  Y.  9,  84  Am.  Dec.  220; 

8.  Pierce  v.  Pierce,   38  Mich.  412;  Koegel  v.  Egner,  54  N.  J.  Eq.  623. 
Gibson  v.  Gibson,  24  Mo.  227.  Contradictory    testimony    on    such 

9.  See  Ayrey  v.  Hill,  2  Add.  206;  points  may  properly  be  left  to  a  jurv.. 
§  126. 

143 


§    129  LAW  OF  WILLS.  [pART    11. 

Xew  York  the  will  of  a  man  notoriously  intemperate  was,  in  1863, 
adjudged  by  the  court  of  appeals  admissible  to  probate,  though 
executed  after  a  protracted  debauch  of  five  days.  The  proof 
showed  that  he  had  at  the  time  of  execution  recovered  from  the 
immediate  effects  of  the  debauch,  speaking  of  it  as  a  matter  of  the 
past,  though  continuing  to  drink  in  the  course  of  the  same  day, 
while  preparing  to  take  a  voyage,  which  was  the  occasion  of  his 
will ;  and  no  extravagance  or  insane  conduct  contemporaneous  with 
the  will  was  shown." 

In  this  case,  we  may  add,  the  court  laid  much  stress  upon  the 
obvious  circumstance  that  there  was  nothing  unnatural  or  unrea- 
sonable in  the  will  itself ;  that  it  was  properly  executed ;  and  that 
the  persons  who  were  present  at  the  very  time  of  the  testamentary 
act  —  one  of  whom  was,  from  previous  knowledge  and  present  ob- 
servation, an  eminently  competent  witness  —  saw  nothing  in  the 
testator  indicating  a  want  of  ordinary  intelligence  or  entire 
sanity.^ 

§  129.  Dementia  as  distinguished  from  Mania  or  Delirium. 

To  speak  now  of  dementia,  or  that  form  of  insanity  which  is 
niarked  by  mental  feebleness  and  decrepitude,  so  that  reason 
flickers  low  in  the  socket  and  then  dies  out.  Between  idiocy  and 
dementia  the  analogy  is  strong;  nor  is  the  word  "imbecility" 
unfrequently  applied  in  the  present  connection  without  taking  in 
congenital  defect  as  a  necessary  element.  Whether  we  speak  of 
imbecility  in  this  broad  sense,  or  use  the  more  technical  term 
'•  dementia,"  we  subordinate  the  idea  of  impediments,  which  birth 

01  infancy  may  have  opposed  to  one's  normal  development,  and 
view  mainly  the  breaking  down  of  the  natural  faculties,  gradual 
and  insensible  usually,  but  sometimes  rapid  and  sudden.  But 
from  idiocy,  whose  proper  type  is  always  the  abnormal  from  birth, 

2.  Peck  V.  Gary,  27  N.  Y.  9,  84  Am.  ITart,  4  Di>m.  (N.  Y.)  501;  Weather- 
Doc.  220.     Cf.  McSnrley  v.  M;Sorl(y,      all    v.    Weatherall,    115    P.    1078,    63 

2  Pradf.   (N.  Y.)   188.  Wash.  526. 

3.  27  N.  Y.  24.    And  see  Stcbbins  v. 

144 


CiHAP.    VII.] 


SENILE   DEMENTIA. 


§  130 


dementia  is  well  distinguished ;  *  tlieir  resemblance  consisting  in 
this, —  that  in  extreme  cases,  no  ray  of  human  intelligence  appears 
visible,  but  all  is  darkness. 

Dementia,  we  distinguish  from  general  mania  or  delirium,  in 
that  depression  of  the  mental  powers  produces  the  fonner  condi- 
tion, but  exaltation,  the  latter.  In  mania,  force,  hurry,  and  in- 
tensity mark  the  action  of  the  mind ;  in  dementia^  slowness  and 
weakness ;  ^  nevertheless,  dementia  appears  often  to  be  a  sequel 
of  mania,  by  a  sort  of  relapse  and  exhaustion  of  nervous  influence ; 
and  many  regard  it  as  the  natural  termination  of  insanity,  a  final 
period  rather  than  a  true  form  of  mental  unsoundness, —  in  a 
word,  tlie  tomb  of  reason.® 

§  130.  Senile  Dementia,  or  the  Mental  Decay  of  the  Aged :    Liti- 
gation on  this  Ground. 

Deinentia  is  sometimes  found  in  the  young  as  a  form  of  in- 


4.  Supra,  c.  5. 

5.  1  Wharton  &  Stille  Med.  Jur.  § 
€98. 

6.  1  Wharton  &  Stille,  §  700,  cit- 
ing M.  Falret. 

"  The  reasoning  of  the  maniac,"  ob- 
serves Dr.  Ray,  ''  does  not  so  much 
fail  in  the  force  and  logic  of  its  argu- 
ments, as  in  the  incorrectness  of  its 
assumptions;  but  in  dementia  the 
attempt  to  reason  is  prevented  by  the 
paucity  of  ideas,  and  that  feebleness 
of  the  perceptive  powers,  in  conse- 
quence of  which  they  do  not  faithfully 
represent  the  impressions  received 
from  without.  In  mania  when  the 
reason  fails,  it  is  because  new  ideas 
have  crowded  into  the  mind  and  are 
mingled  up  and  confounded  with  the 
past;  in  dementia,  the  same  effect  is 
produced  by  an  obliteration  of  past 
impressions  as  soon  as  they  are  made, 
from  want  of  sufficient  power  to  re- 
tain them.    In  the  former,  the  mental 


operations  are  characterized  by  hurry 
and  confusion;  in  the  latter,  by  ex- 
treme slowness  and  frequent  apparent 
suspension  of  the  thinking  process.  In 
the  former,  the  habits  and  affections 
undergo  a  great  change,  becoming 
strange  and  inconsistent  from  the  be- 
ginning, and  the  persons  and  things 
that  once  pleased  and  interested, 
viewed  with  indifference  or  aversion. 
In  the  latter,  the  moral  habits  and 
natural  feelings,  so  far  as  they  are 
manifested  at  all,  lose  none  of  their 
ordinary  character.  The  temper  miy 
be  more  irritable,  but  the  moral  dis- 
position evinces  none  of  that  peiver- 
sity  which  characterizes  mania.  In 
dementia,  the  mind  is  susceptible  of 
only  feeble  and  transitory  impres- 
sions, and  manifests  little  reflection 
even  upon  these.  They  come  and  go 
without  leaving  any  trace  of  their 
presence  behind  them."  Ray,  Insan- 
ity, 292. 


10 


145 


§    130  LAW  OF  WILLS.  [PART    II. 

sanity  not  incurable ;  but  its  most  common  type  occurs  in  old  per- 
sons, whose  mental  powers  begin  to  break  down  in  advance  of  the 
physical.  This  mental  decay  of  the  aged  is  known  as  senile  de- 
mentia ;  and  it  is  upon  the  allegation  of  insanity  of  this  kind  that 
wills  are  most  often  contested ;  or  rather,  we  should  say,  upon  the 
ground  that  the  testator,  while  thus  weakening  in  intellect  and 
volition,  was,  if  not  absolutely  incompetent,  constrained  unduly 
at  all  events,  and  influenced  to  make  a  testament  which  others 
framed  for  their  own  ends. 

This  form  of  dementia  similarly  invites  litigation  and  doubt; 
for,  unlike  the  dementia  of  the  young,  which  is  too  patent  to  admit 
of  question,  senile  dementia  differs  greatly  both  in  the  process  and 
progress  of  decay.  Medical  observers  tell  us  that  it  cannot  be 
described  by  any  positive  characters;  that  in  its  gradual  advance 
to  utter  incompetency  it  embraces  a  wide  range  of  infirmity,  vary- 
ing from  simple  lapse  of  memory  to  complete  inability  to  recog- 
nize persons  o^r  things ;  that  often  the  mental  infirmity  of  the  aged 
is  by  no  means  as  serious  as  might  be  supposed  at  first  sight,  and 
that,  to  use  a  figure  of  speech,  the  mind  may  be  superficially  rotted 
while  it  is  soimd  at  the  core.  Most  of  us  have  known  some  person 
heavily  weighted  with  years  and  infirmity,  who  seemed  scarcely 
conscious  in  general  of  what  was  passing  around  him ;  who  was 
quite  oblivious  of  names  and  dates,  and  committed  childish  breaches 
of  decorum  before  our  guests ;  and  yet,  when  spurred  up  on  occa- 
sion, when  encountering  some  object  which  aroused  a  deep  in- 
terest, or,  what  is  most  pertinent  to  our  subject,  when  touched  upon 
the  aifairs  of  money,  investments,  and  the  family  relation,  showed 
a  clear,  acute,  and  vigorous  comprehension.  Younger  members  of 
the  household  watch  for  signs  of  mental  failure  in  persons  like 
these,  and  confess  that  often  the  signs  deceive  them.  And  once 
more,  senile  dementia,  where  the  mind  has  surely  tottered,  blends 
80  often  the  consequences  of  imprndont  habits,  of  physical  dis- 
orders seated  in  the  system,  of  indulgence  in  drink,  of  some  pecu- 
liar bias  of  character  or  temperament,  of  delusions  or  other  predis- 
position to  insanity,  with  those  of  natural  decay  in  old  age,  that 

140 


CHAP.    VII.]  SENILE   DEMENTIA.  §    131 

a  confused  an^ay  of  proofs  is  offered  by  those  wlio  would  break 
down  the  testament,  so-called,  of  the  superannuated.^ 


§  131.  The  Same  Subject:   When  the  Mind  begins  to  decay. 

Persons  differ  greatly  both  in  metal  and  physical  resources  after 
passing  the  meridian  of  life;  some  declining  rapidly,  others  by 
degrees  almost  imperceptible.  In  one  the  intellectual  functions 
operate  with  healthy  precision  far  into  the  vale  of  years,  the  power 
of  volition  dominating  over  the  ills  of  flesh ;  in  another  the  loss 
of  mental  power  and  energy  seems  to  precede  the  loss  of  physical 
strength ;  but  probably  in  a  majority  of  cases,  both  mind  and  body 
begin  to  fail  together  soon  after  the  prime  of  life  is  reached.  We 
detect  more  easily  when  the  bodily  vigor  and  elasticity  of  mature 
life  shows  signs  of  departure  than  we  do  the  approach  of  mental 
feebleness ;  in  the  former  respect  an  old  person  admits  his  lapse, 
while  he  may  persistently  deceive  himself  and  others  in  the  latter ; 
moreover,  as  Judge  Redfield  has  well  observed  by  way  of  compari- 
son, our  uncertainty  in  estimating  the  powers  of  the  mind  is  the 
greater,  since  the  increase  of  experience  and  knowledge  which  time 
produces  at  all  stages  of  advancing  life  compensates  much  for  the 
decline  of  the  mental  faculties  and  powers.^  Judges,  clergymen, 
and  literary  writers,  whose  minds  have  been  constantly  trained  and 
disciplined,  and  their  circumstances  such  that  brain  work  may 
proceed  without  worry,  retain  in  many  instances  the  capacity  for 
intellectual  labor,  of  the  reasoning  rather  than  imaginative  sort, 
to  a  ripe  old  age. 

7.  The  late  Chief  Justice  Redfield,  with  testamentary  cases,  or  which  has 
in  his  valuable  treatise  on  wills,  evi-  so  important  a  bearing  upon,  or  the 
dently  considered  the  imbecility  of  old  thorough  comprehension  of  which  is 
age,  or  senile  dementia,  as  the  most  so  much  to  be  desired,  as  an  aid  to- 
difficult  and  important  subject  con-  ward  the  correct  understanding  of 
nected  with  testamentary  capacity.  such  cases,  as  that  of  the  imbecility 
"  There  is  probably  no  form  of  mental  of  old  age,  or  senile  dementia."  1 
unsoundness,"  he  says,  "  which  has  to  Redf.  Wills,  94. 
be  considered   so  often   in  connection  8.  1  Eedf.  Wills,  95. 

147 


§    133  LAW  OF  WILLS,  [pART    II. 

§  132.  The   Same  Subject:    Loss   of  Memory  One  of  the  First 
Symptoms  of  Mental  Decay. 

One  of  the  first  as  well  as  of  the  surest  symptoms  of  mental 
decay  is  the  loss  of  memory;  and  especially  in  respect  of  names 
and  dates;  yet,  oblivious  as  an  old  person  might  appear  in  such 
matters,  his  mental  grasp  of  the  relations  he  sustains  to  others  and 
of  his  own  individual  interests  and  affairs,  his  capacity  and  solid 
understanding,  may  still  remain  long  firm.^  At  the  same  time  it 
is  admitted  that  the  faculty  of  remembering,  like  capacity  itself, 
lasts  much  longer  in  some  persons  than  in  others. 

This  failure  of  memory  is  not  enough  to  create  testamentary 
incapacity,  aside  from  fraud,  force,  and  error,  unless  it  extends 
so  far  as  to  be  inconsistent  with  the  "  sound  and  disposing  mind 
and  memory"  requisite  for  all  wills;  or,  in  other  words,  unless 
the  mind  is  incapable  of  grasping  the  details  of  testamentary  dis- 
position, and  the  memory  is  defective  in  such  essentials.-^ 

§  133.  The  Same  Subject:    Causal  Observers  Untrustworthy  as 
compared  with  those  Familiar  with  the  Testator. 

It  follows  from  what  we  have  thus  briefly  observed  of  senile 
dementia  in  its  general  aspect,  that  the  impressions  of  mental  con- 
dition made  upon  casual  or  ignorant  observers  are  untrustworthy 
and  of  very  little  consequence  in  such  cases  as  compared  with  those 
of  persons  who  have  been  well  acquainted  with  the  habits  and 
character  of  the  individual,  and  have  often  had  occasion  to  test  the 
vigor  of  his  faculties.     The  impressions,  for  instance,  which  con- 

9.  Kiiiloside  v.  Harrison,  2  Phillim.  dates  of  events  which  concerned   him 

44!»,    457;     Van    Alst    v.    Hunter,    5  little;    but  whether,   in  conversations 

Jolins.  Ch.  148,  158;  Merrill  v.  Rush,  about  his  affairs,  his  friends  and  rela- 

33  N.  J.  Eq.  537;  Evenson's  Will,  139  tives,  he  evinced  sufficient  knowledge 

N.    W.    766,    153    Wis.    113;    1    Redf.  of  both,  to  be  able  to  dispose  of  the 

Wills,   95.     To   quote   from   Dr.   Ray,  former    with    a    sound    and    untram- 

an    eminent    authority    upon    insane  melled    judgment."      Ray    Med.    Jur. 

fiymptoms:      "The  great  point  to  be  336. 

determined  is,  not  whether  he  was  apt  1.  See  Bleeckor  v.  Lynch,  1  Bradf. 

to  forget  the  namfs  of  people  in  whom  (N.  Y. )   458. 
he  felt  no  particular  irit<'rest,  nor  the 

148 


CHAP.    VII.]  SENILE   DEMENTIA.  §    134 

stant  medical  advisers  have  derived;  intelligent  nurses,  familiar 
visitors  and  friends  of  tlie  family,  and,  allowing  for  the  bias  of 
personal  interest,  the  family  and  immediate  kindred  themselves. 

§  134.  Senile  Dementia  disqualifies  One  from  making  a  Will, 
but  not  Old  Age  Alone. 

Senile  dementia,  as  one  form  or  development  of  insanity,  dis- 
qualifies a  person  from  making  a  will ;  but  old  age  alone  does 
uot.^  The  law  places  an  arbitrary  limit,  so  that  those  not  arrived 
at  a  certain  age  are  conclusively  incapable  of  the  testamentary 
act ;  but  no  such  limit  confronts  the  other  extreme  of  human  life. 
For  a  man  (as  Swinburne  has  expressed  it)  may  freely  make  his 
testament,  how  old  soever  he  be ;  since  it  is  not  the  integrity  of  the 
body,  but  of  the  mind,  that  is  requisite  in  testaments.  Yet  (he 
adds)  if  a  man  in  his  old  age  becomes  a  very  child  again  in  his 
understanding,  or  rather  in  the  want  thereof,  or  by  reason  of  ex- 
treme old  age,  or  other  infirmity,  is  become  so  foregetful  that  he 
knows  not  his  own  name,  he  is  then  no  more  fit  to  make  his  te^s- 
tament  than  a  natural  fool,  or  a  child,  or  lunatic  person.^  By 
which  statement  we  are  not  to  understand  that  the  minor  child 
and  the  superannuiateid  child  are  measured  in  legal  capacity  by  the 
same  simple  standard  of  arithmetical  reckoning;  nor  that  the  con- 
clusive test  of  infirmity  in  old  age  must  depend  necessarily  upon 
the  testator's  recollection  of  one  name  or  another.'* 

The  learned  Chancellor  Kent,  who,  as  a  professional  instructor 
and  author  of  the  famous  Commentaries  on  American  Law  after 
his  enforced  retirement  from  the  bench  at  the  age  of  three-score, 
furnishes  a  conspicuous  example  to  posterity  of  the  error  legisla- 
tion is  sure  to  commit  whenever  it  undertakes  to  assign  an  absolute 
limit  to  adult  mental  capacity  for  afi^airs  and  usefulness  in  the 
public  service,  not  to  add  as  a  private  citizen,  made  some  fittin?^ 
observations  concerning  the  wills  of  old  persons  in  a  case  which 

2.  Swinb.  pt.  2,  §  5,  pi.  1;   Bird  v.  3.  Swinb.  pt.  2,  §  5,  pi.  1. 

Bird,  2  Hagg.  142;  Van  Alst  v.  Hun-  4.  See  supra,  §§  40,  91. 

ter,  5  Johns.  Ch.  148 ;  cases  in  sections 
infra. 

149 


§    136  LAW   OF  WILLS.  [PAPa'    II. 

once  came  before  him  for  decision.  Regarding  it  as  a  fortunate 
circumstance  for  themselves  that  the  aged  have  the  power  to  dis- 
pose of  their  own  property,  "  it  is,"  he  says,  "  one  of  the  painful 
consequences  of  extreme  old  age  that  it  ceases  to  excite  interest, 
and  is  apt  to  be  solitary  and  neglected.  The  control  which  the 
law  still  gives  to  a  man  over  the  disposal  of  his  property  is  one 
of  the  most  efficient  means  which  he  has  in  protracted  life  to  com- 
mand the  attentions  due  to  his  infirmities."  ^ 


§  135.  Wills  of  the  Aged  should  be  tenderly  regarded. 

"  The  will  of  such  an  aged  man,"  adds  the  Chancellor  in  this 
same  opinion,  "  ought  to  be  regarded  with  great  tenderness,  when 
it  appears  not  to  have  been  procured  by  fraudulent  acts,  but  con- 
tains those  very  dispositions  which  the  circumstances  of  his  situa- 
tion and  the  course  of  the  natural  affections  dictated."  ^  We  may 
contrast  the  delicate  feeling  shown  to  the  feeble  in  language  like 
this,  with  the  harsh  and  grating  tone  of  early  text-writers  like 
Swinburne,  when  they  touch  upon  testamentary  incapacity  as  pro- 
duced by  mental  unsoundness.^  But  Chancellor  Kent  himself,  it 
is  here  preceived,  does  not  contend  that  an  old  person's  will  should 
receive  tender  consideration  when  unfairly  extorted  by  others,  or 
unjust  and  unnatural  in  its  disposition  of  the  estate.^ 


§  136.  The  Same  Subject. 

Other  American  decisions  proceed  upon  the  same  view  of  old 
age  in  its  efiFoct  upon  testamentary  capacity.  "  Great  age  alone," 
observes  Surrogate  Bradford,  in  the  course  of  a  long  and  carefully 
considered  opinion,  "  does  not  constitute  testamentary  disqualifi- 
cation ;  but,  on  the  contrary,  it  calls  for  protection  and  aid  to  fur- 
ther its  wishes,  when  a  mind  capable  of  acting  rationally,  and  a 

5.  Van  Alst  v.  TTtintcr.  5  Johns.  Ch.  6.  Van  Alst  v.  Hunter,  5  Johns.  Ch. 

148,  158.     Rpp  Packer's  Estate,  129  P.       148. 

778,  164  Cal.  525.  7.  Swinb.  pt.  2,  §  5,  pi.  1,  supra. 

8.  8vpra,  §  77. 

150 


CHAP.    VII.]  SENILE    DEMENTIA.  §    136 

memory  siifBcient  in  essentials  are  shown  to  have  existed,  and  tho 
last  will  is  in  consonance  with  definite  and  long-settled  intentions, 
is  not  unreasonable  in  its  provisions,  and  has  been  executed  with 
fairness."  ^  "  There  is  no  presumption  against  a  will,"  says  An- 
drews, J.,  reiterating  the  New  York  rule  on  this  subject,  "  because 
made  by  a  man  of  advanced  age,  nor  can  incapacity  be  inferred 
from  an  enfeebled  condition  of  mind  or  body.  Such  a  rule  would 
be  dangerous  in  the  extreme,  and  the  law  wisely  sustains  testa- 
mentary dispositions  made  by  persons  of  impaired  mental  and 
bodily  powers,  provided  the  will  is  the  free  act  of  the  testator,  and 
he  has  sufficient  intelligence  to  comprehend  the  condition  of  his 
property,  and  the  scope,  meaning,  and  effect  of  the  provisions  of 
the  will."  ' 

Eminent  English  authority  is  to  the  same  effect.  "  The  law," 
observes  Sir  John  Nicholl,  "  allows  a  person  at  any  age  to  make 
a  will,  provided  he  retains  the  disposing  faculties  of  his  mind ;  " 
and  he  adds,  thiait  age  is  an  uncertain  criterion  of  mental  powers.^ 
And  Chief-Justice  Cockburn  approves  the  idea  that  though  mental 
power  be  reduced  in  old  persons  below  the  ordinary  standard,  yet 
if  the  testamentary  act  is  understood  and  appreciated  in  its  differ- 
ent bearings,  if  the  mental  faculties  retain  sufficient  strength  freely 
to  comprehend  the  transaction  entered  upon,  the  power  to  make  a 
will  remains.^ 

9.  Maverick  v.   Reynolds,   2   Bradf.  and  memory  sufficiently  sound  to  en- 

(N.   Y.)    360.      And   see   Bleecker   v.  able  him  to  know,  and  to  understand. 

Lynch,  1  Bradf.  458;  Snyder  v.  Sher-  the  business  in  which  he  was  engnged 

man,  23  Hun   (N.  Y.),  139.  at    the    time    when    he    executed    the 

1.  Horn  V.  Pullman,  72  N.  Y.  269,  will?"    Wilson  v.  Mitchell,  101  Penn. 

276    (1878).     The  Pennsylvania  doct-  St.  495,  503,  citing  other  cases  upon 

rine   confirms    the    rule    advanced   on  testamentary    capacity.      And    see    5 

this  point  in  New  York,  and  the  court  Houst.  435. 

makes    reference    in    a    later    case    to  2.  Kinleside  v.  Harrison,  2  Phillira. 

the  general  test  of  capacity  in  those  449,  461. 

enfeebled  by  age,  sickness,  or  extreme  3.  Banks  v.  Goodfellow.  L.  R.  5  Q. 

distress    or    debility    of    body.      '  'To  B.  549.  566.    And  see  Bird  v.  Bird,  2 

sum  up  the  whole  in  the  most  simple  Hagg.  142. 
and  intelligent  form:     Were  his  mind 

151 


§    137  LAW  OF  WILLS.  [PAET    II. 

§  137.  Instances  in  which  Wills  of  the  Aged  have  been  sus- 
tained. 

Instances  from  the  reports  will  serve  to  illustrate  the  principle 
we  are  considering.  In  a  leading  English  case,  Sir  John  Nicholl 
in  1818  admitted  to  probate  the  will  and  codicils  of  a  man  who 
had  executed  the  latter  instruments  when  from  eighty-six  to  eighty- 
eight  years  old,  and  died  at  about  ninety ;  and  this  notwithstanding 
proof  that  the  testator  had  sometimes  been  non  compos  from  vio- 
lent nervous  attacks  while  at  this  advanced  stage  of  life.*  In 
Chancellor  Kent's  opinion,  which  we  have  quoted,  the  will  upheld 
was  made  by  a  person  between  ninety  and  one  hundred  years  old.^ 
In  a  ISTew  Jersey  case  a  will  was  sustained,  although  the  testator 
was  eighty  years  of  age,  very  deaf,  and  troubled  with  defective 
eyesight  when  he  made  it.^  In  Kentucky,  another  testator  of 
about  the  same  age,  was  so  afflicted  with  the  palsy  that  he  could 
neither  read  nor  feed  himself;  yet  his  will  was  adjudged  a  valid 
one ;  ^  and  so  with  a  person  eighty-six  years  old  in  greatly  im- 
paired health.^ 

In  one  ISTew  York  case  a  will  was  vigorously  contesited  where 
the  testatrix  was  ninety  years  old ;  but  no  proof  of  mental  un- 
soundness appearing,  and  the  will  itself  appearing  not  only  a  rea- 
sonable one,  but  in  substantial  accordance  with  one  executed  by 
her  several  years  before,  and  also  with  her  repeatedly  declared 
intentions  concerning  the  disposal  of  her  property,  and  made  after 
being  carefully  read  and  explained,  the  will  was  established.^  In 
another  case  the  court  of  appeals  sustained  the  will  of  a  widower, 
eighty- three  years  old,  which  gave  the  bulk  of  his  estate  to  a  grand- 
son who  had  taken  good  care  of  the  testator  during  his  declining 
years,  and  besftowed  only  five  dollars  each  upon  six  adult  children, 

4.  Kinlcsido  v.  Harrison,  2  Pliillim.  7.  Reed's  Will.  2  B.  Mon.  79. 

440.  8.  Watson  v.  Watson,  2  B.  Mon.  74. 

5.  Van  Alst  v.  Hunter,  5  Johns.  Ch.  9.  Maverick  v.  Reynold-s,  2  Bradf. 
148.  (N.   Y.)    360.      And   see   Bleecker    v. 

6.  Ivowe  V.  Williamson,  1  Green  Ch.  Lynch,  1  Bradf.  458. 
82.     And  see  .32  N.  J.  Eq.  701;  Sharp's 

Appeal,  134  Ptnn.  St.  492. 

152 


CHAP.    VII.]  SENILE  DEMENTIA.  §    138 

who,  though  on  friendly  terms  with  tlieir  father,  had  seldom  vis- 
ited him  in  his  old  age,  and  had  declined  to  let  him  live  with  them.^ 
And  there  is  a  Pennsilvanda  case  where  the  will  of  an  old  man 
was  adjudged  good  though  he  was  more  than  a  hundred  years  old 
when  he  made  it;  blind,  partly  deaf,  and  weakening  in  his 
meniory.^ 

§  138.  The  Same  Subject:    Circumstances  favoring  Probate  of 
the  Will. 

In  these  and  other  instances  of  the  kind,  it  will  be  found  that 
considerations  like  those  adduced  in  corresponding  cases  where 
testamentary  capacity  is  litigated,  may  serve  to  turn  the  scales 
where  doubt  exists.  The  will  is  jusit  and  reasonalble,  or  at  least 
not  positively  the  reverse;  it  regards  the  natural  claims  of  family 
and  kindred,  if  there  be  suich ;  it  was  read  over  and  explained,  or 
at  least  was  apparently  well  understood  at  the  time  of  the  execu- 
tion; it  was  carefully  executed.  Wherever  it  appears  that  the 
testator,  while  clearly  competent,  gave  insitructions  for  such  a 
will,  or  otherwiee  showed  by  conduct  prior  or  subsequent  to  the 
execution,  that  the  disposition  in  question  was  such  as  he  and  not 
others  deliberately  planned,  this  circumstance  should  bear  very 
strongly  in  favor  of  the  'probate.^    It  matters  little  in  general  that 

1,  Horn  V.  Pullman.  72  N.  Y.  269.  196   Penn.    194;    Buckraan's    Will,    85 

2.  Wilson  V.  Mitchell,  101  Penn.  St.  A.  246,  80  N.  J.  Eq.  556;  121  P.  434. 
495.  And  see  Wood's  Estate,  13  3.  See  e.g.  Maverick  v.  Reynolds,  2 
Phila.  236;  Snyder  v.  Sherman,  23  Bradf.  (N.  Y.)  360.  If  the  aged  per- 
Hun,  139;  Vedder,  Re,  6  Dem.  (N.  son  has  no  near  kindred  at  all,  no  per- 
Y.)  92;  4  Dem.  501  (where  the  tes-  sons  with  natural  claims  upon  him, 
tator  was  eighty  years  old  and  a  hard  his  bounty  may  naturally  be  directed 
drinker)  ;  Silverthorn's  Will,  68  Wis.  to  other  persons  or  objects.  See 
372,  32  N.  W.  287;   72  Iowa,  515,  34  Woods's  Estate,  13  Phila.  236. 

N.  W.  309;   1  Con.    (N.  Y.)    18,  373;  Forgetfulness  on  minor  matters  at 

143  Mo.  348,  44  S.  W.  1117;  144  Mo.  the    age   of    eighty-three    is    of    little 

354,  45  S.  W.  1077   (where  the  testa-  consequence  when  it  is  shown  that  the 

tor   was  eighty-three  years   old,   and  testatrix    held    clearly     in    mind   the 

sometimes  used  drugs)  ;  Cash  v.  Lust,  names  of  a  great  many  of  her  lega- 

142  Mo.   630,  44   S.  W.   724,   64  Am.  tees,    mentioned   those    omitted   when 

St.  Rep.  576;   Pooler  v.  Cristman,  34  the  draft  was  read  over  to  her  by  the 

N,   E.   57,   145   111.   405;    46   A.    424.  scrivener,    and   carefully    and    intelli- 

153 


§    139  LAW  OF  WILLS.  [PAKT    II. 

the  testator  judged  harshly  of  a  person,  if  that  person  had  no 
natural  claims  upon  the  testator's  bounty/  General  prudence  and 
good  sense  in  the  management  of  one's  own  business  affairs  and 
consistent  affection,  are  of  course  strong  circumstances  for  up- 
holding the  wills  of  the  aged. 

§  139.  Extreme  Old  Age  suggests  Vigilance  in  Probate;  Mental 
Imbecility  vitiates. 

But  a  tender  regard  for  the  aged  requires  not  only  that  their 
intelligent  dispositions  should  be  upheld,  but  that  their  unin- 
telligent ones,  or  wills  not  really  their  own,  sbould  be  set  aside. 
It  is  said  that  extreme  old  age  raises  some  doubt  of  capacity,  but 
only  so  far  as  to  excite  the  vigilance  of  'the  court  f  by  which,  we 
presume,  is  only  meant  that  vigilance  ought  to  be  exercised.*' 
Should  the  probate  be  contested  in  a  case  where  no  insanity  has 
either  existed  or  been  supposed  to  exist,  the  inquiry  as  to  capacity 
(aside  from  undue  influence)  is  simply  whether  the  mental  facul- 
ties retained  sufficient  strength  to  comprehend  fully  the  testamen- 
tary act  about  to  be  performed.  But  when  lunacy  or  unsoundness 
of  mind  has  previously  existed,  the  investigation  is  of  a  far  more 
searching  and  thorough  sort,  for  a  prejudice  at  once  obstructs  the 
probate."^  There  can  be  no  question  that  mental  imbecility,  whether 
arising  from  old  age  or  any  other  cause  or  complication  of  causes, 
desitroys  testamentary  capacity.  And  undue  influence,  especially 
such  as  constrains  by  causing  fear,  must  be  regarded  with  great 
disfavor  in  all  instances  under  the  present  head.^ 

gently  supervised  the  contents  of  the  6.  Observe  the  context,  ib.     In  this 

instrument  before  executing  it.     Mer-  case  the  will  was  actually  sustained, 

rill  V.  Rush,  33  N.  J.  Eq.  537.     And  There    is    no   presumption    against   a 

see  32  N.  J.  Eq.  701.  will  simply  because  of  old  nge.    Horn 

4.  Lewis,  Re,  33  N.  J.  Eq.  219:  v.  Pullman,  72  N.  Y.  269.  See  White 
Merrill  v.  Rush,  ib.  537.  Harsh  con-  v.  Starr,  47  N.  J.  Eq.  244,  20  A.  875; 
duct,  as  establishing  an  insane  delu-  cases,  supra. 

sion    in   the   testator's   mind,   will    be  7.  See  Prinsep  v.  Dyce  Sombre,  10 

treatr-d  in  the  next  chapter.  Moore  P.  C.  278;  Gl  N.  Y.  S.  1014. 

5.  Kinleside  v.  Harrison,  2  Phillim.  8.  Hartman  v.  Stricklor,  82  Va. 
44'J,     461,     per     Sir     John     Nicholl.  225;  43  N.  J.  Eq.  154;  c.  10,  pust. 

154 


CHAP.     VII.]  SENILE   DEMENTIA.  §     140 

§  140.  Instances  in  which  Wills  of  the  Aged  have  not  been  sus- 
tained. 
Where  a  will  and  codicil  were  executed  bj  a  person  eighty  years 
of  age,  and  neither  of  the  subscribing  witnesses  to  the  two  instru- 
ments testified  favorably  to  his  mental  capacity,  but  one  thought 
him  not  of  sound  mind,  the  surrogate  refused  probate  of  the  instru- 
ments, and  this  decision  was  affirmed  on  appeal  to  the  supreme 
eourt.^  In  Kentucky  the  alleged  will  of  a  man  about  seventy  years, 
who  was  confined  to  his  bed  by  an  inflammatory  disease  of  a  very 
distressing  sort,  which  made  him  frequently  both  drowsy  and 
flighty,  and  died  two  days  later,  w^as  refused  probate ;  and  this 
chiefly,  as  it  would  appear,  because  the  will  showed  gross  inequal- 
ity in  its  dispositions,  and  was  only  made  after  the  teasing  im- 
portunities of  the  testator's  wife.^  In  Missouri  was  set  aside  an 
instrument  propounded  as  the  will  of  an  old  lady  about  seventy- 
three  years  of  age  who  had  grown  childish  and  irritable ;  not  so 
much,  however,  on  the  ground  of  incapacity,  as  because  a  stranger 
in  blood,  who  had  acquired  a  strong  influence  over  her,  procured 
the  will  in  his  own  favoT  regardless  of  her  own  immediate  rela- 
tions, who  were  all  poor.^  And  in  a  iSTew  Jersey  case,  where  one 
made  a  sudden,  unjust,  and  unaccountable  change  of  disposition, 
evidence  that  he  was  eighty  years  old,  that  he  had  suffered  in  his 
mind  from  sun-stroke,  that  he  had  had  delirium  tremens,  that  he 
was  under  a  delusion  that  his  wife  and  son  (with  whom  the  will 
dealt  inequitably)  were  trying  to  kill  him,  land  that  other  persons 
were  trying  to  rob  him, — ^ail  this  was  held  satisfactory  proof  of 
his  testamentary  incapacity.^  Stupor  and  forgetfulness  of  the 
aged  person  at  the  time  of  execution,   are  unfavorable  circum- 

9.  Dumond     v.    Kiff,    7    Lans.     (N.  1.  Harrel  v.  Harrel,  1  Duv.    (Ky.) 

Y. )    465.     The  report  on  appeal  does  203. 

not  exhibit  the   proof  in  detail;    but  2.  Harvey  v.  SuUens,  46  Mo.  147,  3 

an    important    circumstance   unfavor-  Am.  Rep.  491. 

able  to  capacity  was  that  the  testa-  3.  Edge  v.  Edge,  38  N.  J.  Eq.  211. 

tor,  a  few  months  after  these  papers  4.  See  Cockrill  v.  Cox.  65  Tex.  669, 

were  executed,  did  not  know  his  own  115  111.   11,  3  X.  E.   738,  80  Va.  293, 

children,   inquired  how  many  he  had,  89  Va.  849,  17  S.  E.  515. 
and  could  only  name  some  of  them. 

155 


§  141  LAW  OF  WILLS.  [PART  IL 

Stances,  especially  if  sinister  agencies  are  shown  to  have  been  active 
in  procuring  the  testament,  and  death  soon  intervened  after  the 
instrument  was  executed.*  Mental  impairment  by  apoplectic 
shocks  or  paralysis  may  also  be  shown.^  And,  as  our  illustrations 
manifest,  some  charge  of  an  external  undue  influence  has  been  set 
up  with  that  of  mental  incapacity. 

§  141.  Rule  of  Capacity  for  Dementia  not  Different  from  that 
for  Mania. 
It  is  thus  perceived  that  the  legal  principle  by  which  courts 
are  governed  in  testamentary  causes  differs  not  essentially,  whether 
the  alleged  incapacity  be  produced  by  mania  or  dementia.  Al- 
though the  testator  was  aged  and  infirm,  his  will  as  a  rule  may 
be  established,  if,  at  the  time  of  making  it,  he  liad  suiRcient  intel- 
ligence to  comprehend  the  condition  of  his  property  and  his  rela- 
tions to  those  who  were  or  might  naturally  be  the  objects  of  his 
bounty,  and  to  understand  the  provisions  of  the  instnunent.^  If 
the  will  itself  is  fair  and  natural,  and  especially  if  it  be  shown  to 
coincide  in  terms  with  the  deliberate  purpose  announced  by  the 
maker  when  in  sounder  health,  if  it  shows  no  indications  of  fraud 
or  undue  influence, — if  in  sort  it  is  a  rational  act  rationally  per- 

5.  Hudson  v.  Hughan,  56  Kan.  152,  110  Wis.  70;  Chandler's  Will,  66  A. 
42  P.  701;  Bever  v.  Spangler,  93  215,  102  Me.  72;  115  N.  W.  236,  137 
Iowa,  576,  61  N.  W.  1072;  Menden-  Iowa,  613;  180  111.  9,  54  N.  E.  217 
hall  V.  Tungate,  95  Ky.  208,  24  S.  W.  (ninety-one  years  old)  ;  98  N.  Y.  S. 
431;  Davis  v.  Denny,  50  A.  1037,  94  438  (ninety-six  years  old);  Geiger  v. 
Md.  390  (childish  with  loss  of  mem-  Bardwell,  99  N.  E.  582,  255  111.  320 
ory ) .  ( defective  memory  and  mental   slug- 

6.  Supra,  §  68;  Wilson  v.  Mitchell,  gisliness)  ;  Purcell's  Estate,  128  P. 
101  Penn.  495,  503  and  other  cases  932,  164  Cal.  300;  Buckman's  Will, 
cited,  §§  135-140;  Oilman  v.  Ayer,  85  A.  246,  80  N.  J.  Eq.  556;  134  N. 
52  A.  1131,  63  N.  J.  Eq.  806;  Elliott  Y.  S.  682;  Bensberg  v.  Washington 
V.  Elliott,  92  N.  W.  1066,  3  Neb.  832;  University,  158  S.  W.  330,  251  Mo. 
Perkins  v.  Perkins,  90  N.  W.  55,  116  641;  Martin's  A'ill,  144  N.  Y.  S.  174; 
Iowa,  253;  Reed's  Estate.  90  N.  W.  Gnarantee  Trust  Co.  v.  Waller,  88  A. 
319,  86  Minn.  163;  Riggin  v.  West-  13.  240  Penn.  575;  Huston  v.  Bell, 
minster   College,   61    S.   W.    803,    160  103  N.  E.  213,  260  111.  354. 

Mo.  570;  Butler's  Will,  85  N.  W.  678, 

150 


CHAP.    VII.]  SENILE  DEMENTIA.  §    142 

formed,  it  will  be  upheld  as  valid,  and  very  properly  so,  although 
his  mind  may  have  been  considerably  impaired  by  'the  time  of  its 
execution. 

§  142.  Opinions  as  to  the  Capacity  of  an  Aged  Testator  carry 
no  Great  Weight  in  Doubtful  Cases. 

When  the  testator  is  far  advanced  in  years,  and  occasional  in- 
capacity is  produced  by  sickness,  intemperance,  or  other  cause,  so 
that  the  case  is  a  complicated  one,  and  the  evidence  a  mass  of  crude 
and  contradictory  evidence,  but  little  weight  attaches  to  the  mere 
opinion  of  witnesses.^  The  basis  of  such  opinions  is  liable  to  vary 
exceedingly;  and  moreover,  as  Sir  John  l^icholl  has  pointed  out, 
differences  will  arise  from  the  different  abilities  of  the  witnesses 
to  form  such  opinions,  from  their  different  opportunities  of  seeing 
the  person,  and  from  the  different  state  and  condition  of  the  tes- 
tatoi''s  mind  at  different  times.^  Especially  does  this  hold  true 
of  casual  and  unskilful  observers ;  for,  as  already  shown,  it  is 
only  tliose  well  acquainted  with  the  patient  and  his  idiosyncracies, 
whose  impressions  at  this  stage  of  his  life  can  be  trusted.* 

7.  Kinleside  v.  Harrison,  2  Phillim.  8.  Kinleside  v.  Harrison,  2  Phillim, 

449.  449,  457. 

9.  Supra,  §  133. 

157 


§    14:3  LAW  OF  WILLS.  [PART    11. 

CHAPTEE  VIII. 

MONOMANIA    AND    INSANE    DELUSIONS. 

§  143.  Monomania  a  Preferable  Term  to  Partial  Insanity;  the 
Mind  a  Unit. 

That  type  of  insanity  which  remains  finally  to  be  considered 
bears  at  present  the  name  "  monomania."  "  Partial  insanity  " 
was  the  term  formerly  applied,  by  way  of  distinguisihing  it  from 
general  derangement  of  the  mind ;  but  'the  best  of  modern  medical 
psychologists  now  repudiate  the  mode  of  distinction  as  artificial^ 
one  which  leads,  moreover,  to  lax  and  pernicious  theories  upon  the 
subject  of  moral  responsibility.  The  individual  mind,  they  teach 
us,  is  properly  regarded  at  all  events,  as  a  unit  and  indivisible ; 
not  with  moral  and  mental  functions  lodged  in  separate  cells,  so 
that  one  can  be  insane  in  one  function  but  not  in  another, — so  that 
a  man  might  have  an  insane  propensity  to  kill  or  steal,  for  in- 
sance,  for  which  he  was  irresponsible,  and  yet  be  sane  in  other 
respects;  nor  with  subdivided  cells  for  various  mental  faculties, 
all  capable  of  working  apart  and  independently  of  one  another.-^ 

If  this  later  exposition  be  the  true  one,  not  only  "  partial  in- 
sanity," but  "  moral  monomania,"  with  its  confusing  list  of  crimes 
which  should  be  pitied  but  not  punished,  falls  intO'  disrepute. 
Nevertheless,  the  word  ^'  monomania "  in  an  intelleatual  sense, 
and  as  applied  ito  testamentary  instruments,  holds  its  footing  in 
the  courts.  Even  "  partial  insanity  "  might  be  quite  as  unob- 
jectionable a  tonn,  were  it  under  like  limitations.^ 

1.  Wharton  &,  Stillc,  Med.  Jur.  §§  could  only  have  arisen  from  mistak- 
667-571.  ing  tlie  sense  in  which  the  court  used 

2.  In  Dew  v.  Clark.  1  Add.  279;  3  that  term.  It  was  not  meant  that  a 
Add.  79,  Sir  Johh  Nicholl,  one  of  the  person  could  be  partially  insane  and 
ablest  probate  judges  in  English  an-  sane  at  the  same  momoTit  of  time:  to 
nals,  observed  as  follows  on  the  sub-  be  sane,  the  mind  must  be  perfectly 
jeot  of  partial  insanity:  "  Tt  was  sound;  otherwise  it  is  unsound.  All 
Bald  that  '  partial  insanity  '  was  uii-  that  was  meant  was,  that  the  dclu- 
known   to   the  law.     Tlie  observation  sion  may  exi.st  only  on  one  or  more 

158 


CHAP.    VIII.]       MONOMANIA   AND   INSANE    DELUSIONS. 


144 


§  144.  Monomania  defined;  how  distinguished  from  Eccentric- 
ity; Insane  Delusions. 

Monomania,  so  called,  may  co'nsist  in  mental  or  moral  perversion, 
or  in  both.  It  is  the  former  phase  which  is  chiefly  presented  in 
oases  where  the  issue  of  testamentary  capacity  is  involved.  We 
may  here  define  it  a,s  insanity  only  upon  some  particular  subject  or 
class  of  subjects ;  and  as  insanity  in  general  is  manifesited  by  de- 
lusions, so  in  the  pi'ctsent  connection  tliere  appears  in  strictness 
but  a  single  insane  delusion,  an  insanity  upon  some  particular 
subject  or  class  of  subjects,  while  in  other  respects  the  mind  ap- 
pears to  retain  its  normal  powers. 

Insane  delusion  is  thought  to  consist  essentially  in  believing 
that  to  be  true,  or  to  exist,  which  no  man  in  his  senses  can  admit.^ 


particular  subjects.  In  that  sense 
the  very  same  term  is  used  by  no  less 
an  authority  than  Lord  Hale,  who 
says :  '  There  is  a  partial  insanity 
of  mind  and  a  total  insanity.  The 
former  is  either  in  respect  to  things 
[quoad  hoc  vel  illud  insanire — some 
persons  that  have  a  competent  use  of 
reason  in  respect  of  some  subjects, 
are  yet  under  a  particular  dementia 
in  respect  of  some  particular  dis- 
courses, subjects,  or  applications],  or 
else  it  is  partial  in  respect  of  de- 
grees; and  this  is  the  condition  of 
very  manj',  especially  melancholy  per- 
sons, who,  for  the  most  part,  discover 
their  defect  in  excessive  fears  and 
griefs,  and  yet  are  not  wholly  desti- 
tute of  the  use  of  reason;  and  this 
partial  insanity  seems  not  to  excuse 
them  in  the  committing  of  any  offence 
for  its  matter  capital ;  for,  doubtless, 
most  persons  that  are  felons  of  them- 
selves, and  others,  are  under  a  de- 
gree of  partial  insanity  when  they 
commit  these  offences.'  It  is  very 
difficult   to   define   the    invisible   line 


that  divides  perfect  and  partial  in- 
sanity; but  it  must  rest  upon  circum- 
stances duly  to  be  weighed  and  con- 
sidered both  by  judge  and  jury,  lest 
on  the  one  side  there  be  a  kind  of  in- 
humanity towards  the  defects  of  hu- 
man nature;  or,  on  the  other  side, 
too  great  an  indulgence  given  to  great 
crimes." 

Cf.  Lord  Brougham's  criticism  of 
the  expression  "  partial  insanity," 
which  he  says  would  be  better  de- 
scribed by  the  phrase  "  insanity  "  or 
"  unsoundness,"  always  existing, 
though  only  occasionally  manifest. 
Waring  v.  Waring,  6  Moore  P.  C.  349. 

3.  A  delusion  in  medical  jurispru- 
dence is  "  a  diseased  state  of  the  mind 
in  which  persons  believe  things  to  ex- 
ist, which  exist  only,  or  to  the  de- 
gree they  are  conceived  of  only,  in 
their  own  imaginations,  with  the  per- 
suasion so  fixed  and  firm  that  neither 
evidence  nor  argument  can  convince 
them  to  the  contrary."  Bouv.  Diet. 
"  Delusion ;  "  Robinson  v.  Adams,  62 
Me.  369,  401,  16  Am.  Rep.  473.    "  The 


159 


§     l't4^  LAW  OF  WILLS.  [PAET    II. 

This  very  standard  of  comparison,  however,  namely,  the  avei-age 
man  in  his  average  range  of  mind,  is  far  from  fixed  and  positive. 
Men  have  been  thought  under  an  insane  delusion  who  saw  clearly 
in  advance  of  their  age ;  and  it  is  no.t  so  long  since  that  any  one 
who  believed  it  possible  for  distant  cities  to  hold  converse  by 
means  of  the  electric  wire  would  have  been  set  down  by  he  mass 
of  his  fellow-men  as  a  monomaniac.  The  world  itself  is  deluded 
by  its  own  imperfect  experience  of  things,  by  erro^rs,  by  super- 
stitition,  by  dreams.  A  morbid  state  of  mind,  a  strange  per^^er- 
sion  on  particular  subjects,  is,  nevertheless,  to  be  detected  fre- 
quently in  some  indi\adual;  it  is;  a  sym'ptom  often  of  general 
derangement  soon  to  follow ;  or,  again,  it  remains  fixed  as  the  last 
discoverable  symptom,  after  some  mental  disorder  of  greater  scope 
appears  to  have  passed  away. 

It  is  generally  admitted  that  the  degrees  of  morbid  derange- 
ment, of  so-called  monomania,  vary  very  greatly  in  particular 
cases ;  one  person  showing  great  sagacity  and  mental  acuteness  on 
all  subjects  ouit  of  the  range  of  his  peculiar  infiraiity,  while  another 
has  well-nigh  lost  altogether  the  balance  of  his  faculties.  But, 
while  some  who  are  less  affected  seem  to  conceal  their  delusion 
from  the  world  with  considerable  skill  and  art,  the  monomaniac 
more  commonly  shows  himself  quite  unconscious  that  his  par- 
ticular hallucination  separates  him  from  the  mass  of  mankind 
and  provokes  the  comment  'that  he  is  crazy.  This  it  is,  as  reput- 
able writers  assert,  which  most  distinguishes  monomania  from 
eccentricity  or  any  mere  oddness  of  opinion ;  for  the  odd  or 
eccentric  man  admits  his  peculiarity,  but  persists  in  his  course 

correct  principle   is,  that  whenever  a  It  is  misleadincr  and  inaccurate  to 

person    imagines    something    extraga-  use  insanity  and  delusion  as  converti- 

gant  to  exist,  which  really  has  no  ex-  ble   terms;    for    there    are    delusions 

istence  whatever,  and  he  is  incapable  which  sane  minds   have  entertained; 

of  being  reasoned  out  of  his  false  be-  while  in  that  decaying  state  of  the  in- 

lief,  he  is  in  that  respect  insane;  and  tellect  known  as  dementia,  or  in  im- 

if  his  delusion  relates  to  his  property,  l)ecility,  the  insane  mind  is  often  too 

he    is    then    incapable    of    making    a  f(H>l)le    to   manifest   delusions   of   any 

will."    Bcnoist  v.  Murrin,  5S  Mo.  307,  appreciable  consequence  at  all. 
323. 

IGO 


CHAP.    VIII.]        MONOMANIA   AND   INSANE    DELUSIONS.  §     145 

from  choice  and  in  defiance  of  public  sentiment,  while  one  labor- 
ing under  the  insane  delusion  admits  neither  error  nor  singularity 
on  his  part,  but  seems  persuaded  that  he  is  guided  by  tihe  most 
judicious  of  counsel.*  His  insanity  puts  on  the  aspect  of  a  sort 
of  supernatural  sianity,  and  by  this  is  most  easily  detected.  Yet, 
even  here,  h.ow  liable  it  is  to  happen  that  where  one  pursues  some 
mistaken  fancy  or  delusion,  but  not  an  insane  one,  the  more  he 
insists  that  he  is  rational,  the  more  are  others  misled  to  believe 
that  he  is  out  of  his  mind,  and  an  indignant  denial  of  insanity  is 
taken  as  proof  positive  of  derangement  until  a  mutual  explana- 
tion reveals  the  false  premises  upon  which  his  course  of  action  was 
based.^ 

§  145.  The  Same  Subject:    Eccentricity  further  distinguished. 

It  is  further  to  be  remarked,  asi  between  insanity  and  eccen- 
tricity, tliat  the  latter  is  traced  down  as  a  natural  and  gradual 
growth  of  habits  and  character  in  an  individual  under  the  peculiar 
influences  which  surrounded  him.  When  the  will  of  such  a  person 
is  opened,  no  matter  how  oidd  its  langxiage  or  how  whimsical  its 
provisions,  those  familiar  with  the  person  pronounce  it  just  such 
a  document,  nevertheless,  as  might  have  been  expected  from  him. 
But  the  will  of  an  insane  person,  or  the  other  han,d,  shows  rather 
a  perversion  of  mind,  an  alienation  of  feeling,  astonishing,  un- 
accountable, and  strangely  at  variance  with  bis  natural  character 
while  in  sound  health.  Exjfcernal  causes  account  for  eccentric  but 
not  for  insane  behavior. 

Eccentricity  signifies  in  many  cases  an  insiane  predisposition ; 
and  where  the  eccentric  hiabit  is  suddenly  acquired,  starting  up 
without  a  growtli,  or  where  one's  whole  nature  seems  to  have  ber 
come  quickly  perverted  so  as  to  run  back,  as  it  were,  in  an  opposite 
channel,  we  may  well  sjuspect  that  insane  delusion  is  at  work.^ 

4.  Taylor  Med.  Jur.  626,  629 ;  1  "  Twelfth  Night "  serves  as  a  ready 
Redf.  Wills,  72.  illustration  in  point. 

5.  The  instance  of  Malvolio  in  the  6.  See    1    Redf.    Wills,    85;    Taylor 

Med.  Jur.  632,  656. 

11  161 


§    146  LAW  OF  WILLS.  [PART    II. 

A  person  may  be  eccentric,  and  so  predisposed  to  insanity  as  to 
become  decidedly  deranged  at  some  periods  of  life,  and  yet  at 
other  times  so  remitted  to  the  former  state  of  mere  eccentricity 
as  to  be  pronounced  capable  of  making  a  will.  Such  was  the  case 
of  th,e  testatrix  in  Mudivay  v.  Crofts,  whose  will  nevertheless  Sir 
Herbert  Jenner  Fust  admitted  to  probate,  upon  proof  that  she 
was  laboring  under  no  delusion  or  derangement  when  she  made  it. 
Her  father,  it  appears,  died  when  she  was  seven  years  old;  her 
mother  was  of  secluded  and  penurious  habits,  to  which  she  herself 
was  brought  up ;  but  although  eccentric  in  her  manners,  and  ill 
educated,  she  was  acute  in  business,  conducted  her  own  affairs, 
managed  her  own  investments,  gave  intelligent  directions  to  her 
legal  advisers,  and  showed  herself  quite  tenacious  and  clear-headed 
as  to  her  legal  rights.  Eccentricity,  the  court  observed,  involves  a 
greater  susceptibility  than  usual  to  mental  derangement;  but  still 
it  is  not  mere  strangeness  of  conduct  or  singularity  of  mind  which 
constitutes  the  presence  of  insanity.  "  It  is  the  prolonged  departr 
ure,  without  an  adequate  external  cause,  from  ithe  state  of  feeling 
and  modes  of  thinking  usual  to  the  individual  when  in  health,  that 
is  the  true  feature  of  disorder  of  mind."  '' 

§  146.  Insane  Delusion  has  no  Basis  in  Reason;  Reason  and  Evi- 
dence cannot  dispel  it. 

On  the  whole,  the  essence  of  an  insane  delusion  is  that  it  has 
no  basis  in  reason,  and  cannot  by  reason  or  evidence  be  dispelled 
in  the  slightest.  It  is  thus  capable  of  being  cherished  side  by  side 
with  other  ideas  utterly  inconsistent  with  it.*  The  term  "  de- 
lusion "  as  applied  to  insanity  must  be  distinguished  from  a  mere 
mistake  of  fact  or  being  induced  by  false  evidence  to  believe  that 
a  fact  exists  which  does  not  exist^  A  belief,  however  erroneous, 
which  is  rationally  entertained,  is  not  an  insane  delusion.^ 

7.  Mudway  v.  Croft,  3  Curt.  671,  Y.)  220,  251;  Florey  v.  Florey,  24 
f)7^;  Wri;,'lit's  Estate,  51  A.  1031,  202       Ala.  241. 

Perm.    TJO.'i;    Medill   V.    Snyder,   58   P.  9.  See  §§  1G2,  215,  post;  also  §  144^ 

962,  61  Kan.  15,  78  Am.  St.  Rep.  306.      supra. 

8.  .Merrill   v.   Rolston,   5  Redf.    (N.  1.  TTutchinson  v.  Hutchinson,  95  N. 

162 


CHAP.    Vlir.]        MOXOMANIA    AND    INSANE    DELUSIONS.  §    147 

§  147.  Delusions,  Sane  or  Insane,  in  General. 

Delusioms  of  one  kind  or  another  are  the  usual  accompaniment 
of  a  deranged  mind;  and  the  courts  have  sometimes  been  disposed 
to  test  one's  general  sanity  by  ascertaining  whether  he  exhibits 
delusions.  But  what  we  call  delusions  afford  a  very  capricious 
standard;  and  certainly  capricious  in  their  legal  relations,  as  con- 
cerns testamentary  capacity.  Sir  J.  P.  Wilde  (Lord  Penzance) 
in  1867  criticized  severely  the  current  definitions  of  English  coiirts 
on  the  subject.  A  delusion  is  "  a  belief  of  facts  which  no  rational 
person  would  have  believed  " ;  so  spoke  Sir  John  N'icholl.  "  But 
who,"  ajsks  Sir  J.  P.  Wilde,  '^  is  a  '  rational '  person  ?  And  does 
not  the  assumption  '  rational '  beg  'the  question  at  issue  ?  "  "  The 
belief  of  things  as  realities,  which  exist  only  in  the  imagination  of 
the  patient;  "  so  said  Lord  Brougham  in  Waring  v.  Waring;  but 
do  not  sane  people  imagine  unrealities  ?  ''A  pertinacious  adher- 
ence to  so'me  delusive  idea,  in  opposition  to  plain  evidence  of  its 
falsity,"  said  Dr.  Willis,  as  quoted  by  Sir  John  Nicholl ;  "  but  are 
not  sane  people  sometimes  pertinacious  in  error  ?  and  who  is  to 
determine  what  evidence  is  ''  plain  '  ?  "  And  arguing  hence  from 
the  inadequacy  of  all  the  definitions,  Sir  J.  P.  Wilde  concluded  that 
delusions,  as  insane  delusions,  ought  to  be  proved  by  insianity, 
not  insanity  by  delusions.^  A  later  probate  judge  of  that  country 
admits  that  to  test  delusion  by  what  "  no  rational  person  would 
have  believed  "  is  arguing  in  a  circle,  yet  he  considers  that  test 
a  good  one  for  practical  purpos^es.^ 

It  is  sometimes  assumed  that  a  delusion,  to  be  pronounced 
insane,  must  have  been  combated,  sO'  that  it  appears,  in  fact,  not  only 
against  just  reason  but  against  argument  or  evidence  adduced  to 
the  contrary.^^ 

E.   143,   250  111.   170,   101  N.  E.   946,  3a.  Kendrick's    Estate.    62    P.    605, 

258  111.  558.  130  Cal.  360.     And  see  Stull  v.  Stull, 

2.  Smith  V.  Tebbitt,  L.  R.  1  P.  &  96  N.  W.  196,  1  Neb.  380;  Heming- 
D.  401.  way's   Estate,   45   A.   726,    195   Penn. 

3.  Boughton  v.  Knight,  L.  R.  3  P.  291,  78  Am.  St.  Rep.  815. 
&  D.  64. 

163 


§    148  LAW  OF  WILLS.  [PART    II. 

§  148.  Delusions  which  do  not  involve  Mental  Incapacity. 

It  is  not  g-iven  us  to  penetrate  into  the  world  of  dreams,  nor 
to  solve  those  mvsiteries  in  which  a  mind  of  strono-  imascinative 
powers  and  quick  susceptibilities,  prone  to  morbid  depressions, 
inaj  become  invoh-ed,  under  the  influence  of  superstitious  train- 
ing, long  habits  of  self-introspection,  or  any  such  strange  exper- 
ience of  life  as  gives  to  the  character  an  eccentric  development. 
But  surely,  many  of  tiie  delusions,  hallucinations,  apparitions, 
by  whatever  names  we  may  choose  to  call  then,  manifested,  in 
these  and  other  minds,  come  very  far  short  of  establishing  one's 
incapacity  for  the  usual  transactions  of  life.  An  overtaxed  mind. 
tending  to  disease  and  disorder  is  often  thus  sbovni,  to  be  saire; 
but  the  strain  may  be  temporary  only,  and  the  delusion  never 
strong  enough  to  unseat  reason  or  pervert  the  mind  from  its 
jsroper  functions  or  tiie  great  tiask  with  which  it  wrestles.  Mac- 
beth's  dagger  and  tlie  ghost  whicJi  appeared  to  Brutus  before 
the  battle  are  familiar  among  the  countless  exampleg  in  fiction; 
and  for  veritable  history  one  need  only  refer  to  modem  appari- 
tions, in  which  men  like  Dr.  Johnson,  Lord  Castlereagh,  and 
President  Lincoln  believed,  whose  testamentary  capacity  it  would 
be  preposterous  to  dispute ;  or  the  star  of  destiny  by  which  ISFia- 
poleon  guided  his  conduct  at  a  momentous  crisis/  The  delusion 
may  give  friends  cause  for  anxiety ;  but  the  mind,  when  tested, 
is  shown  quite  capable  of  making  a  will  or  managing  vast  affairs. 
But  there  are  other  cases  in  which  a  general  morbid  derange- 
ment of  all  or  most  of  all  the  organs  must  be  admitted  to  exist. 
To  these,  and  to  the  great  mass  of  instances  like  those  already 
cited.  Dr.  Wharton,  an  excellent  authority  among  medical  jur- 
ists, applies  with  strong  approval  the  observaitions  of  De  Bois- 
mont,  on  the  case  of  a  man  who  supposed  that  he  had  sunk  all 
his  wealth  at  the  bottom  of  a  well.^     And  he  invokes  on  behalf 

4.  ThpHo  historical  illustrations  are  tiont  was,  whose  history  we  have  re- 
set forth  at  lenj^'th  in  1  Wharton  &  latod,  he  was  capahle  of  making  a 
Stille.  §§  52  T)?.  will.  Tliis  is  a  very  difTicult  question; 

5.  "  It  may  he  asked  wluther,  in  l)ut  its  solution  is  not  an  impossibil- 
tlie   state   of   mind    in    wliieh    the   pa-  ity.       When  the  conduct  of  the  indi- 

1G4 


CHAP,   vin.]      mono]ma:nia  and  insane  delusions.  §   15U 

of  the  weak  and  eccentric  comprised  in  this  categ-ory  a  portion 
of  that  tender  solicitude,  where  the  court  deals  with  their  last 
wills,  which  Chancellor  Kent  so  touchinglj  claimed  for  old  men 
in  a  passage  we  have  already  cited. ^ 

§  149.  Whimsical  or  Eccentric  Behavior  does  not  incapacitate. 

Mere  whimsical  behavior,  or  eccentricities  in  dress,  demeanor, 
and  habits  of  life,  constitute  no  incapacity  to  make  a  will  or 
perform  any  other  property  transaction.  Isolation  from  social 
companionship  engenders  usually  peculiarities  in  this  direction; 
and  the  unmarried  or  disunited  of  both  sexes,  those  whose  homes 
have  been  broken  up,  and  who  find  no  close  domestic  bond  such 
as  smoothis  off  the  angles  and  rough  edges  of  individual  charac- 
ter by  constant  attrition,  are  the  mosit  prone  to  develop  them.'' 

§  150.  Illustrations  of  Eccentric  Wills. 

Though  the  distinction  beitween  eccentricity  and  insanity  is  a 
positive  one,  abstractly  considered,  courts  have  not  in  all  cases 
applied  it  with  marked  success.  There  are  recorded  instances 
where  wills  have  been  refused  probate  in  the  English  ecclesiastical 

vidual  does  not  depart  from  received  121  111.  376,  12  N.  E.  267;  6  Dem. 
usages,  when  it  is  not  controlled  by  (N.  Y.)  123;  145  Mo.  432,  46  S.  W. 
one  of  those  false  ideas  that  make  him  955;  Cash  v.  Lust,  144  Mo.  354.  45 
hate  his  relations  and  friends  without  S.  W.  1077.  One  may  be  eccentric,  pe- 
any  motive,  and  when  he  regulates  his  culiar,  slovenly  in  his  conduct,  con- 
expenses  prudently,  we  do  not  think  versation,  personal  habits  and  attire, 
tliat  whimsical  actions,  or  words,  the  and  yet  be  capable  of  making  his  will, 
results  of  an  erroneous  belief,  but  Knight's  Estate,  31  A.  682,  167  Penn. 
having  no  influence  on  the  prominent  453.  And  see  Prentis  v.  Bates,  88 
acts  of  his  life,  should  deprive  a  per-  Mich.  567;  56  N.  J.  Eq.  766,  41  A. 
son  of  his  civil  liberties,  and  of  the  422;  Wright's  Estate,  51  A.  1031, 
power  of  making  his  will."  De  Bois-  202  Penn.  395,  27  App.  D.  C.  535; 
mont,  cited  1  Whart.  &  Stille  Med.  Morse  v.  Scott,  4  Dem.  (N.  Y.)  507; 
Jur.  §  58.  Hutchinson   v.  Hutchinson,   95   N.   E. 

6.1  Whart.  &  Stille,  §  59;  supra,  §  143,  250  111.   170;      Converse  v.  Mix, 

135.  115  P.  365,  63  Wash.  318.  The  mater- 

7.  See  Boughton  v.  Knight,  L.  R.  3  ial  point   is  a  departure    from    one's 

P.  &  D.   64;   American  Bible  Society  normal    condition.      Hock's  Will,  129 

V.  Price,   5  N.  E.   126,   115   111.   623;  N.   Y.   S.   196. 

165 


§    150  LAW  OF  WILLS.  [PART    II. 

courts  because  tlie  testator  during  life  or  in  the  testamentary  act 
showed  a  disgusting  fondness  for  brute  animals.  In  one  case  the 
testatrix,  who  was  a  spinster,  kept  fourteen  dogs  of  both  sexes, 
who  were  provided  with  kennels  in  her  drawing-room ;  in  another, 
a  solitary  female  befriended  a  multitude  of  cats,  which  were  pro- 
vided with  regular  meals  and  furnished  with  plates  and  napkins.^ 
That  affection  which  sets  domestic  creatures  like  these  above  the 
human  kind  can  hardly  be  called  a  natural  one,  and  yet  it  is  not 
hard  to  comprehend  how  a  heart  whose  natural  yearnings  find  no 
response  from  humankind  may  expend  itself  upon  the  lower  ani- 
mals. The  Arab  loves  his  horse,  and  prisoners  of  sftate  have,  in 
their  solitude,  made  pets  of  rate  and  vermin.  The  lowest  of  brute 
creation  is  capable  of  toucliing  the  hmnan  chord  as  well  as  gratify- 
ing  a  scientific  curiosity.  One  might  have  expected,  thein,  to  find 
the  whimsical  attachment  of  such  females  pronounced  tbe  sign  not 
so  much  of  insane  as  of  merely  eccentric  behavior;  unless,  indeed, 
die  will  passed  coldly  by  those  whose  humau  claims  for  sympathy 
should  have  had  the  first  place  in  such  a  disposition. 

One  the  other  hand,  there  is  a  remarkable  case  in  which  a  man's 
will  was  sustained,  as  that  of  an  eccentric,  not  insane  penson, 
which  not  only  disinherited  the  next  of  kin  in  favor  of  a  stranger, 
but  displayed  a  wholly  irreverent  contempt  for  the  post  mortem 
disposition  of  tlie  testator's  own  body,  such  as  might  shock  the 
most  benighted  of  heathen  savages.  He  directed  his  executors  to 
cause  some  parts  of  his  bowels  to  be  converted  into  fiddle  strings, 
others  sublimated  into  smelling  salts,  and  the  remainder  of  his 
body  vitrified  into  lenses  for  optical  purposes ;  and  in  a  letter 
attached  to  the  will  he  said :  ''  The  world  may  think  this  to  be  done 
in  a  spirit  of  singularity  or  whim;  but  T  have  a  mortal  aversion  to 
funeral  pomp,  and  I  wish  my  body  to  be  converted  into  purposes 
useful  to  mankind."  ^  One  might  have  wished  this  will  refused 
probate,  if  only  to  rebuke  the  offensive  zeal  which,  sanely  or  in- 
sanely, vaunted  in  a  Chrisitian  country  so  flippant  a  disposition 

8.  Tiiylor     Mc/l.     .Tur.     058.    citing  9.  Morgan    v.    Boys,    Taylor  Med. 

Yglcsia.s  V.  Dyko,  Prcrog.  Court,  1852.      .Tur.  657;  cited  1  Rcdf.  Wills.  83. 

1G6 


<:iiAr.    VIII.]        MONOMANIA   AND    INSANE    DELUSIONS.  §    151 

of  person  and  property.  But  the  letter  above  quoted  s'hovp-ed  that 
conscious  defiianee  of  public  opinion  only  to  be  expected  from  a 
rational  niiud ;  and  as  the  testator  Kimself  was  shown  to  bave  con- 
ducted his  affairs  in  life  with  great  shrewdness  and  ability,  and  to 
have  been  universally  regarded  by  his  asisociates  as  a  man  of  sound 
eapacity,  the  court  pronounced  him  eccentric  and  not  deranged 
upon  the  proof,  and  admitted  the  will.^  Yet  it  would  be  bard  to 
say  why  tenderness  for  the  brute  creation  should  be  thought  a 
sign  of  unnatural  perversion,  and  contempt  for  one's  own  body 
(and  presumably  for  all  human  bodies)  should  not. 

§  151.  The  Same  Subject. 

But  in  the  matter  of  funeral  and  burial,  differences  of  educa- 
tion and  habits  of  thought  may  unquestionably  produce  tastes  and 
cusitoms  utterly  dissimilar.  Thus,  shocking  as  it  may  ®eem  to 
most  of  us  to  have  the  corpse  deliberately  burned  instead  of  buried, 
there  are  those  who,  with  deliberate  thougbt  and  even  enthusiasm, 
embrace  the  doctrine  of  cremation.  A  will  which  gives  such  a 
direction  need  be  no  more  than  eccentric.^^  And  in  details  less 
repulsive,  but  sounding  rather  in  extravagant  folly,  the  religious 
views,  the  personal  experience,  the  habits,  associations,  and  super- 
stitions surroundings  of  the  testator  during  his  life  may  throw 
such  light  upon  his  directions  as  wholly  to  remove  the  suspicion 
of  insanity.  An  English  ease,  reversed  on  appeal,  illustrates  this 
i-emark.  The  testator,  who  was  a  native  of  England,  but  had 
lived  long  in  ^the  East  and  professed  the  Mahometan  faith,  directed 
that  the  residue  of  his  estate,  after  paying  ispeciiied  legacies, 
should  go  to  the  poor  of  Constantinople,  and  towards  erecting  a 

1.  lb.     Judge    Redfield    pronounces  would  not  be  likely  to  adopt.     And, 

this    "  the    most    remarkable  case  of  considering  that  the  will  in  question 

mere   eccentricity   upon   record,    if   it  not  only  made  so  shocking  and  cold 

was   such,"  and  shows  a  healthy    re-  blooded  a  sacrifice  of  the  ranker's  own 

pugnance  to  testaments   so    heartless  person  to  the  cause  of  science,  but  ap- 

and   irreverent.    In    his    opinion,  the  pears  to  have  sacrificed  the  heir  with 

court  took  too  charitable  a  view  in  re-  equal  heartlessness,  we  may  well  agree 

gard  to  the  testator's  mental  capacity,  with  him.    See  Morse  v.  Scott,  4  Dem. 

and    one    which    an    American     jury  fX.  Y.)    507. 

167 


§    153  LAW   OF  WILLS.  [pART    II. 

cenotaph  in  that  city,  inscribed  with  his  name,  and  bearing  a  light 
to  be  kept  perpetually  burning.  It  was  an  absurd  and  supersti- 
tious will,  when  tested  by  opinions  and  habits  of  thought  prevalent 
in  England,  for  which  reason  the  Brerogative  Court  condemned 
it  as  the  offspring  of  insanity ;  but  on  appeal,  the  Privy  Council 
refused  to  measure  derangement  by  the  standard  of  English 
thought  and  feeling,  and  the  wOl  was  admitted  to  probate.^ 

§  152.  Eccentric  Habits  may  afford  Evidence  of  Insane  Delu- 
sion. 

Eccentric  habits  may  afford  proof  of  insane  delusion,  when  taken 
in  connection  with  other  facts  and  circumsitances  pointing  to  the 
same  conclusion.  Especially  is  this  true  where  the  eccentricity 
together  with  the  delusion  follows  mental  prositration  or  develops 
in  some  strange,  sudden,  and  unaccountable  mode,  insftead  of  grow- 
ing as  habits  usually  do.^ 

§  153.  Monomania  or  Insane  Delusion  involves  Derangement; 
its  Selfish  Manifestations. 
When  we  come  to  the  more  serious  diso'rder  known  as  mono- 
mania, which  throws  great  doubt  upon  the  sufferer's  capacity  for 
affairs,  the  insane  delusion  on  some  particular  subject  is  the  symp- 
tom most  prominent ;  and  yet  weakness  or  derangement  affects 
P'robably  the  mind  as  an  entirety.  The  understanding  will  be 
found  perverted  in  regard  to  a  single  object,  or  a  limited  series 
of  objects.  Solitary  life,  or  the  oppression  of  some  particular  task 
or  problem,  upon  which  the  brain  has  long  revolved,  is  likely  to 
Ijave  induced  this  deranged  condition  from  a  morbid  one;  and 

la.  The   custom  of  cremation  gains  had  no  next    of    kin    nearer  than  a 

progress    in    this    country    since    the  brother    of    independent    means;     so 

above  was  written,  and  may  no  longer  that,  by  this  bounty  to  the  poor  of  a 

be  regarded  a,s  even  eccentric   (1915).  Turkish  city,  no  natural  claims    ap- 

2.  Austen   v.   Graham,   29   E.   L.   &  pear  to  have  been  seriously  impaired. 

Eq.  38.    In  this  case,  general  derange-  3.  Miller  v.  White,  5  Redf.   (N.  Y.) 

mfnt.  and  not  monomania,  was  sot  up  .320,    afTords    a    good    illustration  in 

by  tlic  contestants  of  the  will.      Tlio  point. 
decedent  had  lost  wife  and  child,  and 

1G8 


CHAP.    VIII.]       MONOMANIA  AND   INSANE   DELUSIONS. 


154 


hence  ©ccentrie  habits  often  precede  or  acoorapany  the  disorder. 
'J'his  derangement,  which  we  call  monomania,  admits  of  fine 
gradations.  Noithing  leads  more  naturallj  to  such  disorder  than 
the  experience  of  a  mind  of  active  but  ill-attuned  faculties,  which 
has  been  thrown  back  upon  itself  from  some  couse,  without  the  sure 
prop  of  external  sympathy ;  and  in  its  most  decided  majiifesita- 
tions  it  is  selfish,  and  morbidly  rejects  the  natural  companionship. 
It  would  appear,  too,  that  the  person  thus  afflicted  may  retain  a 
sufficient  power  of  voMtion  to  resitrain  hiis  expressaons  of  aversion, 
and  conceal  the  real  depth  of  his  delusion.* 

§  154.  The  Same  Subject. 

Authorities  in  the  medical  jurisprudence  of  insanity  teach  us 
that  the  illusions  or  false  impressions  of  the  monomaniac  kave 


4.  It  is  well  known  to  those  who 
are  conversant  with  the  insane,"  ob- 
serves Dr.  Prichard,  "that  in  persons 
who  are  considered  as  laboring  under 
monomania,  the  mind  is  otherwise  dis- 
ordered and  weakened,  though  the 
characteristic  illusion  is  the  most 
striking  phenomenon.  The  social  affec- 
tions are  either  obliterated  or  pervert- 
ed; some  ruling  passion  seems  to  have 
entire  possession  of  the  mind,  and  the 
hallucination  is  in  harmony  with  it, 
and  seems  to  have  had  its  origin  in 
the  intense  excitement  of  the  pre- 
dominant feeling;  this  is  always  a 
selfish  desire  or  apprehension,  and 
the  illusory  ideas  relate  to  the  per- 
sonal state  and  circumstances  of  the 
individual.  In  most  ca-ses  of  exclu- 
sive or  partial  mental  illusion,  the 
persons  affected  are  abstracted,  ab- 
sent, incapable  of  applying  themselves 
to  any  occupation,  or  even  of  reading 
with  attention;  they  either  forget  the 
objects  of  their  strongest  attachment, 
or  if  they  think  of  them  at  all,    it   is 


only  to  accuse  them  of  injustice  and 
cruelty,  on  the  most  frivolous  pre- 
texts, or  the  most  improbable  sus- 
picions." Prichard's  "  Insanity  in  Re- 
lation to  Legal  Questions,"  cited  in 
Smith  V.  Tebbitt,  L.  R.  1  P.  &  D.  422. 
See  also  Dr.  Hammond's  tract  on 
Insanity,  quoted  in  1  Whart.  &  Stille, 
§  60,  note.  It  is  laid  down  by  this 
eminent  physician:  (1)  That  one  of 
the  most  prominent  features  of  this 
species  of  insanity  is  a  morbid  feeling 
of  hatred  to  friends  and  relatives,  and 
a  disposition  to  do  them  injury.  (2) 
That  it  is  especially  a  symptom  of 
monomania  to  imbibe  delusions  which 
exercise  a  governing  influence  over  the 
mind  of  the  affected  individual,  and 
force  him  to  the  commission  of  acts 
which  in  a  state  of  sanity  he  would 
not  perpetrate.  (3)  That  the  mono- 
maniac has  power  to  conceal  his  delu- 
sions and  to  arrest  the  paroxysms  of 
delirium  to  which  he  may  be  sub- 
jected. 


169 


§    155  LAW  OF  WILLS.  [part    II. 

almost  always,  if  not  invariably,  a  reference  to  himself;  tlia.t  at 
some  times  they  relate  to  his  fofrtune,  rank,  or  personal  identity; 
at  others,  to  his  health  of  body  and  his  sensations.  "  In  the  former 
class  of  cases,"  says  Dr.  Pi-ichard,  "  tlie  patient,  feeling  himself 
unhappy,  fancies  himself  in  debt,  ruined,  betrayed;  or,  being  dis- 
posed to  an  opposite  state  of  feelings,  possessed  of  great  wealth 
aud  affluence,  and  superior  to  all  mankind.  The  ditference  of 
these  impressions  seems  to  depend  ujDon  tlie  diiferent  state  of 
spirits;  the  persons  affected  by  thie  former  kind  of  impressions 
are  those  whose  minds  are  predisposed  to  gloom  and  forebodings 
of  ill;  the  latter  kind  affect  the  sanguine  and  excitable."^  And 
it  is  matter  of  common  note  that  persons  so  deranged  often  fancy 
themselves  kings,  emperors,  prophets,  or  popes;  far  in  dignity 
indeed,  above  the  common  herd  of  mankind. 

§  155.  English  Opinions  of  Monomania  as  affecting  Testament- 
ary Capacity. 
So  much  of  our  knowledge  of  insanity  is  built  upon  imperfect 
phenomena,  that  we  need  not  be  surprised  to  find  lauthorities,  and 
eminent  ones,  laying  down  somewhat  at  variance  the  legal  maxims 
which  ought  to  apply  to  cases  of  insane  delusion.  The  English 
rule  was  long  considered  as  settled  on  the  rational  basis,  that 
whether  to  set  a  will  aside  or  not  on  the  around  of  monomania,  or 
some  particular  mental  delusion,  should  be  tested  by  ascertaining 
whether  or  not  the  will  appears  to  have  been  the  direct,  unquialified 
offspring  of  tlie  morbid  or  insane  delusion.  Upon  such  a  dis- 
tinction turned  the  decision  of  Sir  John  Nicholl  in  the  ce'lebrated 
-case  of  Deiv  v.  Clarlc,^  which  was  confirmed  by  the  Court  of  Dele- 
gates, and  whose  judgment  Loird-Chancellor  Lyndhurst  refused  to 
disturb,^  observing,  when  objections  were  pressed  to  the  use  of  the 
term  "  partial  insanity  "  in  the  court  below,  that  the  eminent  judge 
meant  only  to  convey  that  there  must  be  unsoundness  of  mind  in 

5.   I'ricliiird's  "Insanity,"  cto..  f:it<vl  6.  Dow  v.  Clark,    1    Add.    279;     3 

in  Smith  v.  Tebbitt,  L.  R.  1  P.  &   D,       Add.  79,  Rxipra,  §  143. 
422.  7.  See  5  Russ.  Ch.  163. 

170 


-CHAP.    VIII.]       MONOMANIA  AND   INSANE    DELUSIONS.  §    155 

order  to  invalidate  a  will,  but  that  tihe  unsoundness  may  be  evi- 
denced only,  or  principally,  with  reference  to  one  or  more  subjects.* 
The  LoTd-OhanoelloT's  reservajtion  of  this  point  invited  at  the  next 
opportunity  a  vigorous  aittack  upon  the  theory  of  "  partial  in- 
sanity "  in  any  such  sense  as  should  present  the  idea  of  a  divisible 
mind,  sound  in  some  functions  and  unsound  in  others.  The  oppor- 
tunity came  in  1848,  when  in  a  remarkable  case  Lord  Brougbam 
boldly  took  ground  against  the  notion  tha-t  there  could  be  insanity 
on  one  point  as  consiatent  with  testamentary  capacity.*  This 
oj)inion  he  delivered  without  dissent  as  tlie  judgment  of  himself 
and  jurists  like  Lord  Langdale  and  Dr.  LusihingCon,  whose  names 
commanded  the  highest  respect  in  legal  circles.  The  judgment 
1  endered  might  well  enough  have  been  reached  through,  the  reason- 
ing of  Sir  John  ^STieholl ;  hence  we  may  question  whether  the  sup- 
port of  Lord  Brougham's  colleagues  went  beyond  repudiating  on  so 
fitting  an  occasion  the  compartment  theory  of  tlie  human  mind, 
and  leaving  Lord  Brougham,  a  man  more  famous  for  versatile  at- 
tainments than  the  judicial  temper,  to  wo^rk  out  his  own  ingenious 
speculations  in  the  brilliant  essay  which  legal  usage  styled  an 
opinion.-^ 

8.  5  Russ.  Oh.  63.  general;  it  may  have  extended  over  a 

9.  Waring  v.   Waring,   6  Moore  P.      greater  or  less  portion  of  the  under- 
C.  349.  standing,  or  rather,  we  ought  so  say, 

1.  "The      question      being."      says  that  it  may  have  affected  fewer  of  the 

Lord    Brougham,    "  whether  the  will  mental  faculties."      Here  follows    an 

was  duly  made  by  a  person  of  sound  able  criticism  of   theories  which    ob- 

mind  or  not,  our  inquiry,  of  course,  struct  the  true  conception  of  the  mind 

is,  whether  or  not  the  party  possessed  as  one  and  indivisible;   his  Lordship 

liis  faculties,  and  possessed  them  in  a  objecting  to  the  expression   "  partial 

healthful   state.     His   mental    powers  insanity,"  or  even  "  monomania,"  and 

may    be    still    subsisting,  no  disease  arguing  that  when  we  predicate    that 

may  have  taken  them  away,  and  yet  one  is  of  unsound  mind  only  upon  cer- 

they  may  have  been  affected  with  dis-  tain  points,  we  are  wrong  in  suppos- 

ease,  and  thus  may  not  have  entitled  ing  such  a  mind  really  sound  on  other 

their  possessor  to  the  appellation  of  subjects;   it  is  sound  only  in  appear- 

a     person     whose    mind    was    sound.  ance.     "'  It  follows,  from  hence,  that 

Again,         the         disease         affecting  no   confidence   can  be  placed    in    the 

them   may    have   been   more    or   less  acts,  or  in  any  act,  of  a  diseased  mind, 

171 


§  156 


LAW  OF  WILLS. 


[PAET    II. 


At  firsit  it  was  inferred  by  manj  that  a  new  doctrine  bad  been 
introduced  into  English  jurisprudence,  a  new  consti*aint  placed 
upon  tosifcamentiary  capacity  in  doubtful  cases ;  and  the  danger  was 
great  that  eccentric  testators  would  lose  whatever  precarious  foot- 
hold they  had  ever  gained  in  courts  of  probate  jurisdiction.  In 
Smith  V.  Tehhitt,  Sir  J.  P.  Wilde,  in  1867,  m-ade  Lord  Brougham's 
hypo'thesis  the  starting-point  of  his  own  investigation.  "  A  per- 
son," he  observed,  "  who  is  affected  by  monomania,  although 
sensible  and  prudent  on  subjects  and  occasions  other  than  those 
upon  which  his  infirmity  is  commonly  displayed,  is  not  in  law 
capable  of  making  a  will."  ^ 

§  156.  The  Same  Subject. 

But  in  1870  the  Court  of  Queen's  Bench  repudiated  expressly 
the  hypotliesis  of  Lord  Brougham,  and  returned  to  ^the  old  ground. 


however  apparently  rational  that  act 
may  appear  to  be,  or  may  in  reality 
be."  One  uniformly  of  sound  mind 
could  not  at  the  moment  of  the  act  be 
the  prey  of  morbid  delusion,  whereas 
the  person  called  partially  insane 
■would  inevitably  show  his  subjection 
to  the  disease  the  instant  the  topic 
was  suggested :  therefore  we  can  rely 
upon  the  act  of  the  former,  but  not 
upon  that  of  the  latter.  "  It  must 
always  be  a  question  of  evidence,"  is 
Lord  Brougham's  conclusion,  "  on  the 
whole  facts  and  circumstances  of  the 
case  whether  or  not  the  morbid  delu- 
sion existed  at  the  time  of  the  /o«- 
tum;  that  is,  whether,  had  the  subject 
of  it  been  presented,  the  chord  been 
struck,  there  would  have  arisen  the 
insane  discord  which  is  absent,  to  all 
outward  apfK-a  ranee,  from  the  chord 
not  having  been  struck." 

This  is  certainly  a  very  diflicult 
maxim  for  any  jury  of  ordinary  sa- 
gacity to  apply.  It  presents  a  hypothe 

1 


sis,  not  a  common-sense  rule,  for  their 
guidance,  and  must  in  many  instances 
prevent  a  just  decision.  Might  not 
one  be  under  a  morbid  delusion  with 
reference  to  the  future  state,  the  pres- 
ence of  ghosts  and  so  on.  and  yet  show 
himself  capable  of  managing  his  own 
worldly  affairs  and  making  a  rational 
disposition  of  his  property? 

2.  Smith  v.  Tcbbitt,  L.  R.  1  P.  &  D. 
398.  "  For  I  conceive,"  he  adds, 
■'  the  decided  cases  to  have  established 
this  proposition:  that  if  disease  be 
once  shown  to  exist  in  the  mind  of  the 
testator,  it  matters  not  that  the  dis- 
ease be  discoverable  only  when  the 
mind  is  addressed  to  a  certain  subject 
to  the  exclusion  of  all  others,  the  tes- 
tator must  be  pronounced  incapable. 
Further,  that  the  same  result  follows, 
though  the  particular  subjects  upon 
wliich  the  disease  is  manifested  have 
no  connection  whatever  with  the  tes- 
tamentary disposition  before  the 
court."     lb. 

72 


CHAP.    VIII.]        MONOMANIA   AND   INSANE    DELUSIONS.  §     156 

Cliief-Jiistice  Cockbum,  a  man  of  vigorous  powers,  wlio  always 
regarded  fclie  substantial  justioe  of  the  cause  which  h.is  court  was 
called  upon  to  decide,  reviewed  the  whole  subject  in  a  masterly 
manner,  and  reached  this  satisfactory  result:  that  delusions,  aris- 
ing from  mental  disease,  which  are  not  calculated  to  prevent  the 
exercise  of  those  faculties  essential  to  the  making  of  a  will,  nor 
to  interfere  with  the  consideration  of  the  matter  which  should 
be  weighed  on  such  an  occasion,  and  which  delusions  have  not  in 
point  of  fact  influenced  the  testamentary  diisposition  in  question, 
are  not  sufficient  to  deprive  the  testator  of  testamentary  capacity 
and  to  invalidate  his  will.^ 

Unlike  the  cases,  beginning  with  Waring  v.  Waring,  which 
had  ruled  otherwise,  this  was  an  instance  where  it  was  really 
just  to  the  testaitor's  memory  that  the  will  in  controversy  should 
he  sustained.  The  opinion  itself,  which  the  Chief-Justice  per- 
sonally prepared,  contained  cautious  reservations  indicating  that, 
as  concerned  thie  human  mind  in  the  unity  of  its  functions,  he 
accorded  with  the  views  advanced  by  Lord  Brougham  and  the 
best  of  modern  psychologists.* 

3.  Banks  v.  Goodfellow,  L.  R.  5  Q.  ination,  but  we  see  no  reason  to  think 

B.  549.     The  able  and  sagacious  Chief  that  it  is  beyond  the  power  of  judi- 

Justice  admits  the  great  distrust  with  cial     investigation     and    decision,   or 

which    any    will    must    be    regarded  may  not  be  disposed  of  by  a  jury  di- 

where  the  testator  is  once  shown    to  rected  or  guided  by  a  judge." 

have  had  insane  delusions;  especially,  4.  Lord    Brougham    and    Sir   J.    P. 

if  the  will   itself    is    an  unjust  one.  Wilde    (Lord  Penzance)    lay  it  diiwu 

"  But  when   in   the  result,"    he    con-  that  the  mind,  being  a  unit,  cannot  ba 

tinues,  "  the  jury  are  satisfied  that  the  said  to  be  disordered  in  one  part  and 

delusion  has  not  affected  the  general  not  in  another.     The  theory  of  Chief 

faculties  of  the   mind,  and  can  have  Justice  Cockburn  is  best  stated  in  his 

had  no  effect  upon  the  will,  we  see  no  own  words:  "  Whatever  may  be  its  es- 

sufficient    reason    why    the    testator  sence,   every   one  must    be    conscious 

should  be  held  to  have  lost  his  right  that  the  faculties    and    functions    of 

to  make  a  will,  or  why  a  will    made  mind  are  as  various  and  distinct  as 

under  such  circumstances  should  not  are  the  powers  and  functions    of    our 

be  upheld.     Such  an  inquiry  may    in-  physical  organization.  The  senses,  the 

volve,  it  is  true,  considerable  difficulty  instincts,  the  affections,  the  passions, 

and  require  much  nicety   of  discrim-  the  moral  qualities,  the  will,  peicep- 

173 


§  157. 


LAW  OF  WILLS. 


[part   II. 


Sir  Jtames  HannerL,  one  of  the  court  responsible  for  tJie  deci- 
sion in  tins  c<ase,  took  occasion  to  commend  Lord  Cockbum's 
views  somewhat  later,  when  charging  a  jury  as  Judge  Ordinary 
where  another  will  was  opposed  at  the  p^robate  on  the  ground  of 
insane  delusion.''  Such,  then,  is  the  posture  of  English  judical 
opinion  on  this  difficult  subject  lut  the  present  time. 

§  157.  English  Cases  stated  where  Wills  were  refused  Probate 
because  of  Insane  Delusion. 
Passing  from  dictum  to  decision,  we  find,  as  often  happens, 
no  such  great  discrepancy  in  legal  effect ;  principles  having  been 
disputed  more  broadly  than  the  facts  of  a  given  case  had  required. 
To  begin  with  Dew  v.  Clarh,  decided  about  1823.  An  eminent 
electrician  had  an  only  child,  a  daughter  of  amiable  traits,  and 
Avorthy  of  his  alfoction ;  and  after  experimenting  most  cruelly   to 


tion,  thought,  reason,  imagination, 
memory,  are  so  many  distinct  facul- 
ties or  functions  of  mind.  The  pathol- 
ogy of  mental  disease,  and  the  experi- 
ence of  insanity  in  its  various  forms, 
teach  us  that  while,  on  the  one  hand, 
all  the  faculties,  moral  and  intellec- 
tual, may  be  involved  in  one  common 
ruin,  as  in  the  case  of  a  raving 
maniac;  in  other  instances,  one  or 
more  only  of  these  functions  may  be 
disordered,  while  tlie  rest  are  left  un- 
impaired and  undisiurbed;  that,  while 
the  mind  may  be  overpowered  by  delu- 
sions which  utterly  demoralize  it,  and 
unfit  it  for  the  perception  of  the  true 
nature  of  surrounding  things,  or  for 
the  discharge  of  the  common  obliga- 
tions o*  life,  there  often  are  delusions 
which,  though  the  offspring  of  mental 
disease,  and  so  far  constituting  insan- 
ity, yet  leave  the  indivichial  in  all 
other  respects  rational,  and  capable  of 
trariHiictlng  the  ordinary  affairs  and 
fulfillin''    the   duties   and    nblisrations 


incidental  to  the  various  relations 
of  life.  No  doubt  when  delusions  exist 
which  have  no  foundation  in  reality, 
and  spring  only  from  a  diseased  and 
morbid  condition  of  the  mind,  to  that 
extent  the  mind  must  necessarily  be 
taken  to  be  unsound,  just  as  the  body, 
if  any  of  its  parts  or  functions  is  af- 
fected by  local  disease,  may  be  said  to 
be  unsound,  though  all  its  other  mem- 
bers may  be  healthy  and  their  powers 
or  functions  unimpaired."  L.  R.  5  Q. 
B.  549. 

\Miether  we  accept  its  accuracy  or 
not,  in  the  fullest  sense,  the  analogy 
here  suggested  between  mental  and 
bodily  disease  is  certainly  a  striking 
one,  making  the  seen  figurative  of  the 
unseen. 

5.  Bougliton  V.  Knight,  L.  R.  3  P.  & 
D.  64.  In  Smee  v.  Smee,  5  P.  D.  84 
(1879),  the  court  charged  a  jury  to 
the  same  effect  as  in  Banks  v.  Good- 
fellow,  siifjra. 


174 


CHAP.    VIII,]       MONOMANIA   AND   INSANE   DELUSIONS.  §    157 

bend  lier  to  his  wishes,  and  explore  those  unuttorod  thoughts  which 
are  confided  by  the  human  soul  to  its  Maker  alone,  he  displayed 
against  her  an  uncontrollable  disgust  and  aversion,  oppressing  her 
in  various  ways,  and  finally  making  a  will  which  cut  her  off  in 
favor  of  his  eollatt'ral  relations.  Upon  the  evidence  submitted, 
John  JSTicholl  found  that  the  testaifcor  was  insanely  deluded  upon 
the  subject  of  his  own  child,  and  refused  the  will  probate.® 

In  Waring  v.  Waring,  a  case  whose  decision  required  no  dif- 
ferent mental  hypotliesis  such  as  Lo'rd  Brougham  saw  fit  to  pro- 
mulgate, the  testetrix,  ft  woman  advanced  in  years,  was  very 
penurio'US,  irritable,  wrangled  to  an  excess  with  her  servants.,  and 
ait  times  indulged  in  grossly  obscene  conversation,  imagining  her- 
self to  be  amoirously  soughit  by  the  chief  ministers  of  the  realm. 
All  this  perhaps  might  have  passed  for  eccentricity ;  but  it  was 
shown,  besides,  that  she  ba^d  an  insane  delusion  that  her  bro'thier 
had  joined  the  Roanan  Catholics,  whose  religion  she  abhorred, 
and  like  her  distinguished  lovers  prowled  about  her  house  in 
strange  disguise;  and  that  brother  she  disinherited.  Coupled  as 
all  this  was  with  an  inquisition  of  lunacy,  it  was  easy  to  pronounce 
against  her  will,  upon  any  theo^ry  of  insane  delusion.'' 

Once  more,  in  Smith  v.  Tebhitt,  the  will  of  a  testatrix  was 
eet  aside  whoise  religious  delusions  were  astounding.  Her  de- 
ceased husband  was  the  "  devil,"  for  whom  she  would  not  go 
into   mourning;   her  heirs-at-law  were  "  doomed    to   perdition"; 

6.  Dew  V.  Clark,  3  Add.  79;     1  ib.  never  could  shake  off  the  morbid  de- 

279;  2  ib.  102.  lusion   that  his  brother   had  tried  to 

In  the  opinion  here  rendered,  refer-  poison  him,  and  in  his  will  be  disin- 

ence    is    made    to    the    authority  of  herited     the    brother.      The   issue    of 

Greenwood's  Case,  which,  as  it  seems,  derisavit  t-el  non  was  tried    in    two 

was     never     fully     reported,     though  different    courts,    on€    verdict     being 

stated  somewhat  in  detail  in  various  against  the  will,  the  other  sustaining 

books.    Mr.  Greenwood,  while  insane,  it;   but  the  suit  ended  in  a  compro- 

took  up  an  idea  that  his  brother  had  mise.     See  3  Add.  96,  97;  13  Ves.  89; 

administered  poison  to  him,  and  this  3  Curt.  Appx.  1-31;  1  Wms.  Exrs.  29, 

became  the  prominent  feature  of  his  note. 

malady.  He  recovered  from  his  insan-  7.  Waring  v.   Waring,   6  Moore  P. 

ity    and   returned   to    his    profession,  C.   349. 
■which  was  that    of    a    barrister,  but 

175 


§    158  LAW  OF  WILLS.  [PAKT    IL 

ehe  bad  a  tiara  of  jewels  made  in  whicK  ske  was  to  ascend  to 
heaven ;  she  believed  herself  "  the  Holy  Ghost,"  and  her  medical 
adviser  "  the  Father  " ;  and  to  the  latter,  a  stranger  in  blood  who 
had  rendered  her  no  unusual  servdce,  after  providing  sundry  leg- 
acies for  relatives,  servants,  and  others,  she  willed  the  great  bulk 
of  her  foirtune  as  the  gift  of  "  one  member  of  the  Trinity  "  to 
another.* 

§  158.  The  Same  Subject. 

Very  different  in  its  presentation  of  facts  and  circumstances 
was  Banks  v.  Goodfellow,  where  the  Chief-Justice  and  Queen's 
Bench  refused  to  sanction  a  positive  injustice  upon  any  plea  of 
theoretical  consistency.  In  the  former  instances  there  was  an  in- 
officious will  to  be  set  aside,  here  there  was  none.  Before,  the 
partial  unsoundness  of  mind,  or  rather  the  monomania,  operated 
upon  the  particular  disposition  injuriously  to  the  natural  objects 
cf  the  deluded  person's  bounty ;  now  it  did  not.  Two  delusions 
disturbed  the  mind  of  the  testator;  one,  that  he  was  pursued  by 
spirits ;  the  other,  that  a  man,  long  since  dead,  came  personally 
to  molest  him,  this  dead  man  a  person  not  in  any  way  connected 
with  the  natural  objects  of  the  testator's  bounty.  The  will  in 
dispute  might  well  have  been  the  product  of  a  capable  mind;  and, 
admitting  that  the  testator  was  sometimes  incapable,  'the  issue  of 
actual  capacity  at  the  time  of  the  act  hiad  been  left  to  the  jury 
Tindor  instructions  sufficiently  guarded.  The  jury  found  for  the 
will,  which  was  one  in  favor  of  the  testator's  niece ;  and  as  the 
will  was  not  unnatural,  nor  the  testator's  delusions  such  as  could 
have  influenced  the  disposal  of  his  property,  the  court  on  appeal 
refused  to  disturb  the  verdict." 

Once  more,  in  BougJiton  v.  Knight,^  the  testator's  will  was  set 
aside  because  of  an  insane  delusion  which  operated  injuriously 
against  his  own  flesh  and  blood.     In  this  case  Sir  James  Hannen 

8.  Smith   V.  Tcbbitt,   L.   R.   1   P.  &  9.  Banks  v.  Goodfellow,  L.  R.  5  Q. 

D.   398.  B.  549. 

1.  L.  R.  3  P.  &  D.  64. 

17G 


CHAP.    VIII.]       MONOMANIA   AND   INSANE    DELUSIONS.  §    159 

stated,  with  great  positiveness  of  expression,  that  tbore  is  a  limit 
to  sustaining  wills  whose  provisions  are  unjust  and  unnatural.  A 
man  moved  by  capriciousi,  mean,  or  even  biaid  motives  may  at  our 
law  wholly  or  partially  disinherit  his  own  children  and  leave  his 
property  to  strangers;  bu,t  there  is  a  point  beyond  which  it  will 
cease  to  be  a  qmcstiou  of  harsh  and  unreasonable  judgmeM,  and 
then  the  repulsion  which  a  parent  exhibits  to  his  child  must  be 
held  to  proceed  from  some  mental  defect;  and  if  such  a  repulsion, 
amounting  to  a  delusion,  is  showai  to  have  existed  prior  to  the 
execution  of  the  will,  the  party  who  propounds  that  will  must  show 
that  it  was  inoperative  when  the  will  was  made.^ 

§  159.  American  Maxims  as  to  the  Effect  of  Monomania  upon 
Testamentary  Capacity. 

In  the  American  oases,  where  the  influence  of  monomania  or 
insane  delusiion  appears  to  have  afforded  'a  wider  scope  for  inves- 
tigation, the  doctrine  of  testamentairy  capacity  as  understood  in 
England  prior  to  1848,  and  once  more  favored  in  1870  by  the 
court  of  Queen's  Bench,^  is  firmly  adhered  to.  The  notion  to 
which  Lord  Brougham  gave  currency,  that  a  single  delusion  lurk- 
ing in  the  testator's  mind  vitiates  his  will  (though  not  apparent  in 
the  will  itself)  because  it  proves  hdm  insane  is  pointedly  condemned 
by  eminent  judges  in  various  States ;  *  and  the  point  of  inquiry 
upon  which  testamentary  cases  of  this  character  invariably  turn 
is  whether  the  insane  delusion,  the  monomania,  entered  into  the 
jiroduct  of  the  particular  will  in  dispute.  In  other  words,  where 
general  insanity  so  as  to  wholly  incapacitate  is  not  apparent,  but 
simply  monomania,  the  court  will  admit  the  will  to  probate  where, 
upon  the  whole  proof,  the  conclusion  reached  is  that  the  provisions 
of  the  will  were  not  influenced  by  the  insane  delusion ;  ^  but  where, 

2.  Boughton  v.  Knight,  L.  R.  3  P.  396,  9  Am.  Rep.  242;  Benoist  v.  Mur- 
&  D.  64.  And  see  Smee  v.  Smee,  5  P.  rin,  58  Mo.  307,  179  111.  45,  53  N.  E. 
D.  84.  722. 

3.  Supra,  §  156.  5.  Boardman    v.    Woodman,  47    N. 

4.  See  Dunham's  Appeal,  27  Conn.  H.  120;  Whitney  v.  Twombly,  136 
102,   204;    State   v.   Jones,   50   N.   H.  Mass.  145;   HoUinger  v.  Syms,  37  N. 

177 


§  159 


LAW   OF  WILLS. 


[PAKT    II. 


on  the  contrary,  it  should  fairly  be  inferred  that  the  instrumenit 
was  affected  by  the  insane  delusion,  probate  will  be  refused.®  Not 
an  American  case  of  consequence  h,as  departed  from  th.is  stan- 
dard ;  ^  and,  as  a  general  rule,  any  unsoundness  of  mind  which 
appears  not  to  affect  the  general  faculties,  nor  to  operate  on  the 
niinjd  of  a  testator  in  regard  to  his  testamentary  disposition,  is  not 
deemed  sufficient  to  render  him  incapable  of  disposing  of  his 
property  by  will.^     On  the  other  hand,  partial  insanity  or  mono- 


J.  Eq.  221;  Stackhouse  v.  Horton,  2 
McCart.  (N.  J.)  202;  Leech  v.  Leech, 
11  Penn.  L.  J.  179;  James  v.  Langdon, 
7  B.  Mod.  193;  Gass  v.  Gass,  3 
Humph.  (Tenn.)  278;  Thompson  v. 
Quimby,  2  Bradf .  449 ;  s.  c.  as  Thomp- 
son V.  Thompson,  21  Barb.  107;  Tur- 
ner V.  Hand,  3  Wall.  Jr.  120;  Brown 
V.  Ward,  53  Md.  376;  Clapp  v.  Ful- 
lerton.  34  N.  Y.  190,  90  Am.  Dec.  681; 

48  Wis.  294,  4  N.  W.  337;  Cole's  Will, 

49  Wis.  179,  5  N.  W.  346;  Rice  v. 
Rice,  50  Mich.  448,  15  N.  W.  545; 
Maynard  v.  Tyler,  168  Mass.  107,  46 
N.  E.  413;  Johnson  v.  Johnson,  105 
Md.  81,  121  Am.  St.  Rep.  570,  65  H. 
918;  Robinson  v.  Adams,  62  Me.  369, 
16  Am.  Rep.  473;  135  X.  W.  759. 

6.  Boyd  V.  Eby,  8  Watts.  70;  Sea- 
man's Friend  Society  v.  Hopper,  33  N. 
Y.  619,  43  Barb.  625 ;  Lucas  v.  Parsons, 
24  Ga.  640,  71  Am.  Dec.  147;  Florey 
V.  Florey,  24  Ala.  241;  Stanton  v. 
Wetherwax,  16  Barb.  259;  Merrill  v. 
Rolston,  5  Redf.  220;  Tnwney  v. 
Long,  76  Penn.  St.  106;  Gardner  v. 
Lamback,  47  Ga.  133 ;  American  Bible 
Society  v.  Price,  115  111.  623;  Chaney 
V.  Bryan,  16  Lea,  63;  45  N.  J.  Eq. 
726,  17  A.  826;  6  Dem.  92;  Shreiner's 
Appeal,  178  Penn.  St.  57,  35  A.  974; 
Lancaster  v.  Lancaster,  87  S.  W.  113, 
27  Ky.  Law,  1127;  Hardenhurgli  v. 
Hardenburgh,  133  Iowa,  1,  109  N.  \V. 

1 


1014;  Holton  v.  Cochran,  208  Mo. 
314,  106  S.  W.  1035;  Segur's  Will,  44 
A.  342,  71  Vt.  224;  Harbison  v.  Boyd, 
96  X.  E.  587,  177  Ind.  267;  136  X.  Y. 
S.  1086;  Chevallier's  Estate,  113  P. 
130,  159  Cal.  161. 

7.  See  Cotton  v.  Ulmer,  45  Ala. 
378,  6  Am.  Rep.  703,  where  the  Su- 
preme Court  condemns  a  somewhat 
involved  charge  to  the  jury,  by  way 
of  hypothesis,  in  effect  that  a  will 
may  be  upheld,  although  the  direct 
offspring  of  a  particular  insane  delu- 
sion, if  the  jury  believe  the  testator 
would  have  made  the  same  will  if  he 
had  been   sane. 

8.  Pidcock  v.  Potter,  68  Penn.  St. 
342,  8  Am.  Rep.  181,  47  A.  940;  198 
Penn.  St.  326,  82  Am.  St.  Rep. 
808;  Randall,  Re,  59  A.  552,  99  Me. 
346. 

In  Boardman  v.  Woodman,  47  X. 
H.  120,  it  was  decided  that,  although 
tlie  testator  may  have  been  under  a 
delusion  on  one  or  more  subjects,  yet 
if  tile  will  made  by  him,  and  its  pro- 
visions, were  not  in  any  way  the  off- 
spring or  result  of  the  delusion,  and 
were  not  connected  with  or  influenced 
by  it,  then  the  testator  may  bo  re- 
garded, as  in  law,  of  sane  mind,  for 
the  purpose  of  making  the  will,  and 
the  will  as  valid.  This,  says  Sargent, 
J.,  "  is  in  accordance  with    the   great 

78 


CHAP.    VllI,]        MONOMANIA   AND   IKSAjVE    DELUSIONS. 


160 


mania  is  frequently  held  in  thiis  country  to  invalidate  a  will  which 
is  the  direct  offspring  thereof,  though  the  testator's  general  oapac- 
ity  be  unimpoaohcd  otherwise.^ 

§  160.  American  Cases  stated  where  the  Will  of  a  Monomaniac 
was  sustained. 
There  are  numerous  American  instances  whore  the  will  of  one 
riffecited  by  monomania  has  been  sustained  notwithstanding  some 
insane  delusion  or  delusions  collateral  to  the  disposition.  As  in 
ihe  case  of  a  testator,  who  emtertainod  the  most  extraordinary, 
senseless,  and  absurd  opinions  on  matters  quite  disconnected  from 
the  disposition  of  his  property.^  Or  of  one  who  perversely  insist- 
ed that  his  former  wife,  from  whom  he  was  divorced,  hiad  been 


weight  of  authority,  ancient  and  mod- 
ern, English  and  American,  medical 
and  legal."  And  he  disapproves  the 
opinion  of  Lord  Brougham  in  Waring 
V.  Waring  (§  158)  to  the  contrary. 
The  opinion  in  State  v.  Jones,  50  N. 
H.  396,  9  Am.  Rep.  242,  is  to  the 
same  effect,  and  Chief  Justice  Cock- 
bum  and  the  doctrine  of  Banks  v. 
Goodfellow  are  commended. 

So  in  a  Connecticut  case  in  1850, 
the  court  reviewed  the  authorities 
carefully,  including  Waring  v. 
Waring,  and  ruled  that  "  the 
notion  that  a  single  delusion  is  gen- 
eral insanity,  and  that  the  jury  are 
to  be  so  instructed,  irrespective  of  the 
degree  or  intensity  of  it,  is  nowhere 
countenanced  in  this  country,  and  not 
until  lately  in  England."  Here  the 
court  below  had  refused  to  instruct 
the  jury  "  that,  if  the  testatrix  har- 
bored a  delusion,  she  was.  while  har- 
boring such  delusion,  of  unsound 
mind,  and  her  will  made  at  such  a 
time  would  be  void."  Ellsworth,  J., 
who  delivered  the  opinion  on  appeal, 
held  that  this  refusal  to  so  instruct 

1 


the  jury  was  right.  His  conclusion  of 
the  law  is:  "That,  if  the  testatrix 
had  mind  enough  to  know  and  appre- 
ciate her  relations  to  the  natural  ob- 
jects of  her  bounty,  and  the  character 
and  effect  of  the  dispositions  of  her 
will,  then  she  had  a  sound  and  dispos- 
ing mind  and  memory,  although  her 
mind  may  not  be  entirely  unim- 
paired." Dunham's  Appeal,  27  Conn. 
192.  See  also  the  criticism  of  Lord 
Brougham  in  Benoist  v.  Murrin,  58 
Mo.   307. 

9.  See  the  patient  and  exhaustive 
analysis  of  this  subject,  w'ith  citations 
from  reports,  English  and  American, 
by  Surrogate  Redfield,  in  Merrill  v. 
Rolston,  5  Redf.  220.  And  see  Or- 
chadson  v.  Cofield,  171  HI.  14,  63  Am. 
St.  Rep.  211,  40  L.  R.  A.  256,  49  N. 
E.  197;  109  Mich.  98,  63  Am.  St.  Rep. 
566,  66  N.  W.  681;  Swygart  v.  Wil- 
lard,  76  N.  E.  755.  166  Ind.  25. 

1.  Thompson  v.  Thompson,  21  Barb. 
107,  sustaining  the  decree  in  2  Bradf. 
449.  Mistaken  beliefs  or  delusions  not 
insane  will  be  considered  §  1C2. 


79 


§     161  LAW  OF  WILLS.  [I'AKT    II. 

unchaste,  and  that  their  child  was  illegitimate;  t'here  being  no 
proof  tliat  the  delusion  affected  his  parental  conduct  in  the  slight- 
est degree,  or  that  his  will  discriminated  unjustly  against  the 
child,  considering  tliat  the  latter  inherited  from  the  divorced  wife 
besides,  -who  had  received  a  very  liberal  alimony  at  the  testator's 
oost^  Or  of  one  whose  mental  delusion  relates  merely  to  his  phy- 
sical condition  and  the  cause  of  his  infirmity."  Or  even  of  one 
deluded,  indeed,  as  to  some  particuliar  person  who  might  otherwise 
have  expected  a  legacy  under  the  will,  but  who  cannot  possibly 
derive  any  legal  benefit  from  having  the  will  set  aside.*  Or  gen- 
erally where  it  is  manifest  that  one's  delusion  has  not  affected  his 
gifts.' 

§  161.  American  Cases  stated  where  the  Will  of  a  Monomaniac 
was  not  sustained. 

On  the  other  'hand  are  numerous  decisions,  where  the  will  of  a 
monomaniac  was  refused  probate;  the  insane  delusion  so  tainting 
the  testamentary  disposition  that  it  coidd  not  justly  be  permitted 
to  operate.  As  in  a  case  where  a  father,  while  attacked  with  a 
mental  disorder,  conceived  a  strong  disilike  to  his  eldest  son,  with- 
out any  adequate  cause,  and,  recovering  his  reason  in  all  respects 
except  this  perversion  of  natural  affection,  made  a  will  which 
disinlierited  the  son.®     Or  where,  again,  the  testator  was  under  a 

2.  Cole's  Will,  49  Wis.  179.  Lee  v.  Scudder,  31  N.  J.  Eq.  633,  35 

3.  HoUinger  v.  Syms,  37  N.  J.  Eq.  N.  Y.  70,  6  Dem.  (N.  Y.)  92; 
221.  Schneider  v.  Manning,    121    111.    376, 

4.  Stackhouse  v.  Ilorton,  2  MeCart.  13  N.  E.  267;  135  111.  33,  17  N.  E. 
202.  66;  Smith  v.  James,  34  N.  W.  309,  73 

5.  Rice  V.   Rice,   50  Mich.   448;    15  Iowa,  515. 

N.  W.  545.    The  illusion  of  one  in  the  6.  Lucas  v.  Parsons,  24  Ga.  640,  71 

last  stage  of    consumption    that    she  Am.  Dec.   147.     It  will  be  seen    that 

will  recover  is  of  little  con.sequence  in  the   facts   in   this   ease  very   strongly 

such  connection.     Ayres  v.  Ayres,    43  resemble  those    in    Greenwood's  Case, 

X.  J.  Eq.  565.     See,  further,  Englert  cited  supra,  §   157.     A  perversion    of 

V.  Englert,  47  A.  940,  198  Penn.  St.  feeling  like  this  is  not  seldom  tlie  last 

326.  82  Am.  St.  Rop.  808,  59  A.  552,  trace    left    of    mental  disorder  where 

99  Me.  396;  Benoist  v.  Murrin,  58  Mo.  the  convalescent  appears  in  other  re- 

307;   Df-nson  v.  Bcazley,  34  Tex.  191;  si)oct3  rcst<Trcd  to  reason. 

180 


CHAP.    VIII.]       MONOMANIA  AND   INSANE   DELUSIONS.  §    101 

delusion  t'Lat  his  nephews,  being  Kis  heirs-at-law,  were  conspiring 
to  take  his  life,  and  that  one  of  ^them  had  caused  his  death  by 
putting  him  in  a  stoA^.^  Or  where  he  had  an  unfounded  delusion 
that  his  daughter  lived  in  a  house  of  ill-fame ;  ^  or  that  his  own 
son  was  illegitiraate.^  Or  where  the  decedent,  a  woman,  became 
insanely  morbid  over  the  marriage  made  by  her  heir  with  her 
disapproval,  and  pursued  him  with  the  jealousy,  vindictiveness, 
and  vulgari^ty  of  a  monomaniac  to  the  day  of  her  death,  giving  the 
bulk  of  her  property  to  charities  by  her  will.^  Or  where  an  in- 
temperate husband  was  shown  to  be  so  insanely  jealous  of  his  wife, 
a  chaste  woman,  that  he  denied  the  patemity  of  his  own  children, 
beat  and  abused  her  on  account  of  her  supposed  infidelity,  and 
finally  shot  her  dead  and  committed  suicide,  leaving  a  writteoi 
statement  behind  which  impuited  dishonor  to  her  absurdly  and 
falsely.^  And  so,  too,  in  other  oases  where  the  will  was  made 
under  an  insane  delusion  as  to  misconduct  on  the  part  of  the  nat- 
ural recipient  of  one's  bounty  and  lan  unjust  will  was  made 
accordingly.^ 

Insane  delusion  may  relate  to  the  property  of  which  one  dis- 
poses, rather  than  to  the  persons  who  are  the  natural  objects  of 
his  bounty.*  In  short,  monomania,  or  partial  insanity,  will  invali- 
date any  testament  which  may  fairly  be  inferred  to  be  the  direct 
ofPspring  of  the  malady,  and  an  instrument  vitally  different  from 
what  it  would  have  been  had  the  mind  been  in  its  normal  sane 
condition.^     While  the  discarding  of  one's  relatives,  and  distant 

7.  Seaman's  Friend  Society  v.  Mop-  3.  Thomas  v.  Carter,  170  Penn.  St. 
per,  33  N.  Y.  619;  s.  c.,  43  Birb.  625.  272.  50  Am.   St.  Rep.   770,  33  A.  81; 

8.  Rivard  v.  Rivard,  109  Mich.  98,  Hardenburgh  v.  Hardenburgh,  133 
63  Am.  St.  566,  66  N.  W.  681.  Iowa,    1,    109  N.    W.     1014;     Segur's 

9.  Petefish  v.  Becker,  176  111.  448,  Will,  44  A.  342,  71  Vt.  224. 

52  N.  E.  71.  4.  Brinton's  Estate,  13  Phila.  234. 

1.  Merrill  v.  Rolston,  5  Redf.  (N.  5.  Drinkhouse's  Estate,  14  Phila. 
Y.)  220.  And  see  American  Bible  So-  291;  Whitney  v.  Twombly,  136  Mass. 
ciety  V.  Price,  115  111.  623,  5  N.  E.  145;  Tittel's  Estate,  Myrick  (Cal.), 
126;  Dorman,  Re,  5  Dcm.  112.  13. 

2.  Burkhart    v.    Gladish,  123    Ind. 
338,  24  N.  E.  118. 

181 


§    162  LAW  OF  WILLS.  [pART    II. 

ones  more  especially,  affords  no  necessary  inference  of  incapacity, 
and  while  mere  prejudice  against  tlie  natural  objects  of  one's 
bounty  shouild  not  vitiate  a  testator's  will,  the  case  is  different 
where  the  testamentary  disposition  appears  to  h^ave  been  colored 
or  distorted  by  some  morbid  and  false  delusion,  and  especially  to 
the  injury  of  one's  own  surviving  issue.® 

§  161a.  Sudden  Manifestations,  etc. 

Eccentric  hiabits  and  insane  delusion  are  often  suddenly  mani- 
fested together.  In  a  iSTew  York  ease,  an  aunt,  in  1877,  made 
a  will  in  favor  of  her  niece  and  only  next  of  kin.  She  was  then 
tidy,  ladylike,  and  hospitable;  but  in  1878  she  became  slovenly, 
morose,  and  unsociable,  and,  without  any  good  reason,  took  a 
dislike  to  her  niece,  aspersed  her  motives  in  visiting  her,  and  even 
falsely  charged  her  with  pilfering.  When  she  died,  it  was  found 
that  she  had  revoked  by  a  codicil  all  the  provisions  made  in  her 
niece's  favor;  and  this  codicil  the  court  set  aside  as  evidently  the 
offspring  of  an  insane  delusion.^  An  insane  peiwersion  may  be- 
come quite  sudden  in  its  manifestations,  aside  from  any  mere 
eccentricity.^ 

§  162.  Insane  Delusion  to  be  distinguished  from  Prejudice  or 
Error,  as  well  as  Eccentricity. 
Insane  delusion  should  be  distinguished  from  prejudice  or  some 
rational  belief  not  well  founded  or  unjust,  however  perversely  the 
testator  may  have  clung  to  it.  By  delusion  in  the  popular  sense 
of  the  word,  even  a  sane  mind  may  be  possessed ;  and  this  fact 
legal  if  not  medical  jurLsprudence  recognizes  when  it  bases  the 
present  incapacity  upon  whiat  is  termed  not  delusion,  but  insane 
delusion.  Be  this  as  it  may,  experience  ccrtiainly  teaches  us  that 
one  who  is  sensible  and  reasonable  on  most  subjects,  who  displays 
in  affairs  the  greatest  sagacity  and  may  be  implicitly  trusted  in 

6.  See  Chaney  v.  Bryan,  16  Lea.  8.  Ilardenburgh  v.  Hardenburgh, 
C3  ;    casf's  supra.                                             supra. 

7.  Millor    V.   White,     5     Rodf.    (N. 
Y.)    320. 

182 


CHAP.    VIII.]        MONOMANIA   AND   INSANE   DELUSIONS.  §     102 

the  details  of  business  management  and  the  disposition  of  a  large 
estate,  and  upon  whose  mental  competency  it  would  be  prepos- 
terous to  oast  a  doubt,  will  neverthelesis  display  the  most  narrow 
and  intolerant  views  on  particular  queistioms  or  with  regard  to 
certain  individuals.  His  antipathies  in  this  respect  are  really  as 
groundless  and  wrong  as  they  are  violent,  and  yet  he  will  be  found 
to  cherisii  them  with  as  much  loyalty  as  he  does  his  sympathies. 
We  may  say  thiat  his  prejudice  is  commonly  the  conclusion  of  a 
reasoning  mind  on  insiufficient  evidence.  Yet  the  mind  refuses 
proof  or  argumenits  to  the  contrary  in  many  such  instances,  and 
remains  wedded  to  its  o-wn  convictions,  its  instinctive  likes  and 
dislikes.  ISTow,  all  tliis  obstinate  perversity,  this  wrong-headed- 
neiss,  falls  far  short  of  denying  one  the  right  to  dispose  by  testa- 
ment of  his  own  property ;  and  so  would  it  be  though  the  testator 
were  capricious,  revengeful,  passionate,  niggardly,  base,  dishon- 
orable, a  scoundrel  to  the  world  or  even  to  his  own  family.  For 
strong,  violent,  and  unjust  prejuxiices,  it  is  held,  if  not  founded  in 
insane  delusion,  do  not  establish  mental  incapacity ;  and  no  will 
can  be  set  aside  on  account  of  any  mo^ral  obliquity  or  prejudice  of 
the  testator  displayed  therein,  nor  because  the  particular  disposi- 
tion of  property  is  unnatural  or  unjust,  unless  this  per\^ersion  of 
the  affections  can  be  traced  to  mental  disorder.^ 

9.  Boardman    v.    Woodman,   47   N.  Some  personal  grievance  operating 

H.  120;  Trumbull  v.  Gibbons,  2  Zabr.  upon  a  sti'ong,  irritable,  and  obstinate 

117;   Middleditch  v.  Williams,  45  N.  temper  produces  often    the    state    of 

J.  Eq.  726;  supra,  §  146;  6  Dera.  123;  mind  under  which  the  perverse  preju- 

Carpenter    v.    Bailey,    94    Cal.   426;  dice  is  formed;  and  one  who  in  some 

Prentis     v.     Bates,     88     Mich.      567;  way  happened  to  be  associated    with 

Schmidt   v.    Schmidt,    66   N.   E.    371,  the    grievance,   like     an     officer    who 

201  111.  191    (prejudice  against  a  son  serves  process  for  others,  or  the  attor- 

estranged  from  the  family)  ;   White's  ney  of  the  offending  client,  may  suffer 

Will,    121    N.    Y.  406,  24  N.  E.  935  from    the    harsh    opinion    thus    con- 

( against  a  son  for  joining  a  Masonic  ceived.  Mr.  Justice  Grier  once  charged 

lodge)  ;  Bohler  v.  Hicks,  48  S.  E.  306,  a  jury  in  the  case  of  a  will  produced 

120  Ga.  800   (resentment  against  wife  by  a  testator  of  this  description.  "  His 

for  interfering  with  his  dissolute  con-  mind,"  says  the  court,  "  was  greatly 

duct)  ;   Hutchinson  v.  Hutchinson,  95  excited   on  a  particular   subject, — his 

N.  E.  143,  250  111.  170,  121  P.  434.  park  property.     He  was  very  stingy, 

183 


§    163  LAW  OF  WILLS.  [pAKT    II. 

As  for  merely  eeeentric  oonduot,  we  have  already  seen  tkat  this, 
too,  is  something  distiniot  from  insane  delusion,  though  divided 
often  by  a  line  exceedingly  difficult  to  trace.^ 

§  163.  The  Same  Subject. 

Capacity,  therefore,  should  not  be  considered  as  destroyed  by 
any  delusion  or  ill-founded  or  unjust  belief  not  actually  insane.^ 
And  where  one  indulges  in  a  prejudice,  however  harsh,  which  is 
the  conclusion  of  a  reasoning  mind,  on  evidence  no  matter  how 
slight  or  inaccurate,  his  will  cannot  on  that  account  simply  be 
overturned.  Thus,  where  a  sane  tesitator,  on  slight  but  insufficient 
proof  clung  to  tlie  belief  thiat  hits  wife  has  been  unchaste  and  one 
of  his  daughters  was  illegitimaite,  and  disiaberitod  the  latter  in  con- 
sequence, it  was  decided  that  the  couirt  had  no  ground  for  refusing 
probate  of  tthe  will.^  So,  too,  it  is  held  that  a  testator's  mere 
opinion  that  some  of  his  children  had  treated  him  badly,  though 
oiToneously  formed,  will  not  invalidate  his  testament.^  The  exist- 
ence of  dislikes,  prejudices,  and  animositieis,  however  unfounded, 

and  set  a  high  value  on  his  rights  of  Hall  v.  Unger,  2  Abb.  U.  S.  507 ;  Hall 
property.  But  it  is  no  evidence  of  any  v.  Hall,  38  Ala.  131. 
mental  delusion,  that  he  thought  this  3.  Clapp  v.  Fullerton,  34  N  Y.  190, 
seizure  of  his  property  without  his  90  Am.  Dec.  681;  Cole's  Will,  49 
consent  a  high-handed  exercise  of  Wis.  179,  5  N.  W.  346.  In  Florey  v. 
power,  etc.  That  it  became  his  hobby,  Florey,  24  Ala.  241,  the  circumstances 
made  him  very  troublesome  and  a  were  similar;  but  as  others  took  ad- 
bore  to  all  his  acquaintances  and  vantage  of  this  false  impression  to 
friends,  is  of  no  importance  at  all,  in  deceive  the  testator,  his  will  was  set 
the  matter  trying  before  you,  if  he  aside  as  the  offspring  of  deception, 
retained  his  memory  and  his  usual  Judge  Redfield  observes  that,  in  this 
shrewdness  in  the  management  of  all  case,  the  court  evidently  confounded 
his  otlier  concerns.  Many  a  man  has  more  defect  of  knowledge  and  error  in 
some  hobby,  and  may  ride  it  very  judgment  with  insane  delusion.  1 
much  to  the  annoyance  of  others,  and  Redf.  Wills,  86,  note.  See,  also,  §  146; 
yet  be  perfectly  capable  of  managing  Stull  v.  StuU,  96  N.  W.  196,  1  Neb. 
his  own  affairs,  and  disposing  of  his  380;  103  N.  W.  61,  73  Neb.  492;  Bean 
property  by  deed  or  will."  Turner  v.  v.  Bean,  108  N.  W.  369,  144  Mich. 
Hand,  3  Wall.  Jr.  120.  599. 

1.  SuT>ra,  §  140.  4.  Sliort  v.   Brubaker,   94  Md.    165, 

2.  Fulleck  v.  Allinson,  3  Hagg.  527;  lOG  S.  W.  1035. 

184 


CHAP.    VIII.]       MONOMANIA   AND   INSANE   DELUSIONS.  §    165 

in  one's  mind  does  noit  of  itself  destroy  testamentary  capacity,  nor 
justify  a  court  in  avoiding  an  instrument  which  is  unaffected  b}' 
the  fraud  or  undue  control  of  either  persons.^  The  dislike  of  a 
spouse  with  whom  tlie  testator's  relations  have  not  been  harmon- 
ious, or  some  domestic  feud,  may  be  injuriously  demonstrated  in 
a  will  without  imputing  insanity  of  any  kind  to  the  testator.^  Nor 
does  proof  of  eccentricity,  caprice,  fretfulness,  and  a  suspicious 
a.nd  irritable  temper  establish  either  a  lack  of  mental  capacity  or 
insane  delusions  incompatible  with  the  power  to  dispose  at  dis- 
cretion.^ 

§  164.  Where  Will  is  not  tainted  by  the  Prejudice,  Error,  etc. 

Of  course,  if  the  will  itself  with  its  dispositions  be  not  tainted 
by  the  prejudice,  error,  or  unfounded  animosity  complained  of, 
there  is  all  the  less  reason  for  contesting  it  on  thie  allegation  of 
an  insane  delusion.^ 

§  165.  Rational  or  Irrational,  Just  or  Unjust,  Character  of  the 
Will  to  be  considered. 

The  distinction  we  have  just  dwelt  upon,  as  between  sane  and 
insane  delusion,  that  fallacy  which  is  a  pure  figment  of  the  dis- 
ordered brain  and  that  fallacy  which  comes  rather  from  a  prejudice 
nurtured  by  some  course  of  deception  or  self-deception,  some  eccen- 
tricity of  character  or  hahits,  such  as  makes  one  after  a  time  obsti- 
nate or  inveterate  in  his  groundlesis  belief  or  aversion,  and  unjustly 
disposed  in  consequence,  though  by  no  means  an  incapable  person, 
is,  after  all,  of  less  practical  consequence  in  testamentary  causes 

5.  Carter  v.  Dixon,  69  Ga.  82 ;  Ken-  strung  nervous  t'Cmperament,  with 
drick's  Estate,  62  P.  605,  130  Cal.  "spells"  of  violence).  For  an  avcr- 
360;  Skinner  v.  Lewis,  67  P.  951,  49  sion,  not  amounting  to  insane  delu- 
Oreg.  71  (where  the  gossip  of  neigh-  sion  which  arose  from  a  family  feud 
bors  supplied  the  evidence)  ;  143  N.  of  long  standing,  see  the  interesting 
Y.  S.   798.  case  of  Coit  v.  Patchen,  77  N.  Y.  533 

6.  Phillips   V.   Chater,   1   Dem.    (N.  (1869). 

Y.)    533.  8.  See  Lancaster    v.    Alden,  sttprn. 

7.  Blakely's  Will,  Re,  48  Wis.  And  see  Owen  v.  Crumbaugh,  228  111. 
294,  4  N.  W.  337:  Lancaster  v.  AldeJi,  380,  119  Am.  St.  Rep.  442,  81  N.  E... 
58  A.  638,  26  N.  J.  170  (one  of  a  high-  1044. 

185 


§  1C5  LAW  OF  WILLS.  [pART  IL 

than  would  appear  at  first  sight.  For  be  the  delusion  sane  or  insane, 
be  the  habits  of  the  testator  purely  eccentric  or  such  as  indicate  a 
monomania,  the  best  English  and  the  universial  American  doctrine 
treats  all  this  lightly  in  resj^ect  of  capacity,  p'rovided  the  delusion 
or  the  ecceaitricity  has  not  operated  upon  the  will,  distorting  its 
provisions  into  something  unnatural  and  unjust.  But  if,  on  the 
contrary,  the  result  is  to  disinherit,  to  cut  off  the  natural  objects 
of  one's  bounty,  to  produce  an  absurd,  hurtful,  irrational  will,  a 
court  or  a  jury  will  set  such  an  instrument  aside  with  little  com- 
punction, wherever  a  doubt  remains;  whether  the  testator  was 
not  fixed  in  his  fallacy  by  others,  so  as  to  have  been  unduly  in- 
fluenced, or  else  through  his  own  morbid  reflection  and  experience, 
his  peculiar  hiabits  and  mode  of  life,  perver<ted  in  mind  until  the 
delusion  became  an  insane  one,  a  monomania,  so  that  in  this  par- 
ticular respect  at  least  he  wias  unsound,  deranged. 

This  is  not,  perhaps,  what  the  courts  regularly  assert;  but  an 
examination  of  the  decided  cases  under  our  present  head,  will 
show  that  it  is  usually  the  practical  consequence  with  the  triers 
of  such  cases,  whether  court  or  jury.  No  class  of  testaments, 
indeed,  where  testamentary  capacity  can  be  called  in  question,  will 
be  found  more  easily  indulged  than  those  where  notliing  worse 
than  some  harmless  delusion  can  be  set  up  against  the  testatoa'; 
but  none  are  mo>re  likely  to  be  set  aside,  when  peawerted  in  terms 
from  justice  and  natural  affection,  or  as  the  Roman  law  styled 
them,  inofficious,  than  those  where  the  delusion,  if  such:  it  may  be 
called,  must  have  directly  induced  the  baneful  disposition.  True, 
a  sane  mind  must  be  peiTtiitted  to  work  out  its  own  harsh,  cruel, 
and  revengeful  purposes  for  potd  mortem  effect;  and  yet,  in  de- 
termining whether  there  was  entire  sanity  O'r  monomania,  whether 
the  mind,  even  if  sane,  had  not  been  brought  by  some  other  influ- 
ence, unfairly  exerted,  to  operate  as  it  did,  regard  may  be  had  to 
tlie  contents  of  the  particular  will  and  the  circumstances  surround- 
ing its  cxocution.' 

9  I'l  P.oufrliton  V.  Knifjlit,  L.  R.  3  setting  asido  a  will  which  disinher- 
P.  &.  D.  04,  Sir  James  Ilaiinen,  whdi       it(Ml    one's    cliild     without     any   just 

IPO 


€11 AP.    VIII.]        MONOMANIA   AND   INSANE   DELUSIONS.  §    IGG 

§  166.  Leading  Principles  applied  to  Religious  Opinions;  Delu- 
sions upon  Matters  Supernatural,  etc. 

The  leading  principles  already  stated  apply  to  tositamentary 
causes  where  the  opinion,  oa*  rather  the  delusion,  of  a  teistatoir 
upon  religion  and  matters  supernatural  furnishes  the  ground  of 
controversy.  Unquestionably  the  speculative  belief  any  individual 
may  entertain  concerning  the  preseiDt  or  the  future  state,  things 
natural  or  supernatural,  religion,  politics,  education,  or  any  other 
of  those  agitating  problems  upon  which  men  think  and  divide  in 
sentiment,  should  properly  be  considered  an  affair  of  his  own  con- 
science; and  it  is  within  very  narrow  limits  that  any  such  belief 
can  be  confidently  pronounced  a  delusion.  And  so  long  as  one's 
course  of  conduct  in  pursuance  of  his  opinions  does  not  transcend 
the  laws  which  public  policy  sees  fit  tO'  p'reiscribe  for  society,  there 
is  no  reason  why  he  should  not  by  testament,  as  well  as  by  a  gift 
while  living,  promote  with  his  own  fortune  the  views  to  which  h,e 
has  attached  himself.  Upon  soich  consider atio'iiis  wills  are  justly 
made  which,  without  unduly  neglecting  the  claims  of  natural 
affection,  endow  cliurches,  seminaries,  and  societies  for  the  prop- 
agation of  truth  in  accordance  with  the  testator's  own  creed. 

But  to  all  this  there  is  a  legal  limit.  Certain  so-called  truths 
must  necessarily  be  obnoxious  to  public  policy ;   errors,  in  fact, 

cause,  thus  laid  down  the  distinction  previous  to  the  execution  of  the  will, 
essentially  as  above.  A  man  moved  it  will  be  for  the  party  setting  up 
by  capricious  means,  or  even  bad  mo-  that  document  to  establish  that  it  was 
tives,  may  disinherit  wholly  or  par-  inoperative  when  the  will  was  made, 
tially  his  children,  and  leave  his  prop-  See  also  Cockburn,  C.  J.,  in  Banks  v. 
erty  to  strangers.  He  may  take  an  Goodfellow,  L.  R.  5  Q.  B.  549,  that 
unduly  harsh  view  of  the  character  the  presumption  against  a  will  made 
and  conduct  of  his  children.  But  there  under  the  direct  influence  of  a  delu- 
is  a  limit  beyond  which  it  will  cease  sion  "  becomes  additionally  strong 
to  be  a  question  of  harsh  and  unrea-  where  the  will  is,  to  use  the  term  of 
sonable  judgment,  and  then  the  repul-  the  civilians,  an  inofficious  one,  tl  at 
sion  which  a  parent  exhibits  to  his  is  to  say,  one  in  which  natural  atTec- 
child  must  be  held  to  proceed  from  tion  and  the  claims  of  near  relation- 
some  mental  defect.  If  such  repul-  ship  have  been  disregarded."  And 
sion  amounting  to  a  delusion  as  to  see  Rivard  v.  Rivard,  109  Mich.  98. 
character    is    shown   to  have   existed 

187 


§  1G7  LAW  OF  WILLS.  [PAET  IL 

and  pernicious  to  society  in  its  existing  stage,  according  to  the 
standard  by  which  its  safety  and  welfare  must  he  judged.  Opin- 
ions are  held  by  individuals  consicientiously  and  firmly — ^as,  for 
instance,  in  favor  of  free  love,  commiuiity  in  property,  the  sub- 
version of  civil  authority,  pure  atheism — which  courts,  though 
disposed  to  leave  speculation  free,  may  well  refrain  from  sanction- 
ing, when  it  comes  to  an  individual  bequest  to  propagate.  More- 
over, upon  some  sucth  subjects,  religion  and  the  supernatural  world 
in  particular,  men  may  safely  be  called  deluded ;  and  more  than 
this,  insanely  deluded,  monomaniacs,  or  even  general  maniacs. 
Especially  must  insanity  be  the  symptom,  where  tlie  enthusiast  or 
fanatic,  as  often  may  happen,  comes  to  imagining  himself  vested 
withi  the  divine  or  supernatural  functions:  as  Prophet,  King,  or 
indeed,  tlie  Deity  in  person.^  Such  extreme  derangement,  if  not 
general,  amounts  at  least  to  monomania ;  and  we  may  say  of  such. 
a  person  that  he  is  crazy  on  religious  subjects,  'though  he  may 
show  himself  otherwise  capable  and  reasonable  in  affairs. 

§  167.  The  Same  Subject. 

If,  then,  the  insane  delusion  exists  without  otiier  appearance 
of  incapacity,  but,  on  the  contrary,  testamentary  capacity  is  ap- 
parent in  all  other  respects,  ^the  essential  question  is  whether  tJie 
insane  delusion,  tJie  monomania,  has  affected  the  will  and  the 
particular  disposition.  If  it  has  not,  but  the-  will  appears  just  and 
natural  in  its  provisions  and  duly  executed,  there  is  no  reason  why 
the  will  should  be  refused  probate.  But  if,  on  ithe  contrary,  the 
insane  delusion  has  evidently  affected  the  provisions  of  the  will, 
so  as  to  lead  its  maker  to  bestow  harshly  and  unjustly, — sacrific- 
ing, in  fact,  those  with  nat/ural  claims  upon  the  testator's  bounty 
in  order  to  effect  some  absurd  or  unnatural  purpose, — 'tlie  will 
ought  to  be  set  aside.  And  we  may  add,  as  the  better  inclination 
of  the  decisions,  that  wherever  the  delusion  has  evidently  thus 
operated  to  pervert  the  provisions  of  the  will  in  tJiis  manner,  there 
is  no  need  of  very  minute  inquiry  as  'to  whetilier  the  delusion  was 

1.  See  e.  g.  Smith  v.  Tcbbitt,  L.  R.    1  P.  &.  D.  398. 

188 


CHAP.    VIII.]        MONOMANIA  AND   INSANE  DELUSIONS.  §    168 

sane  or  insane ;  for  tlie  instrument  itself  affords  strong  proof  that 
the  faculties  of  the  mind  were  too  disordered  to  bear  properly  upon 
the  scheme  of  testamenitary  disposal.^  The  will  which  delusion 
most  surely  does  not  invalidate  is,  after  all,  a  just  and  rational  one. 

§  168.  Wills  of  Persons  believing  in  Witchcraft,  Spiritualism, 
Clairvoyance,  etc. 
It  follows  that  the  will  of  one  who  believes  in  witchcraft,  magic, 
ghosts,  and  spectral  influences,  whether  supernatural  or  only  mys- 
terious, is  not  on  that  sole  account  void.^  'Nor  does  the  belief  in 
spiritualism  invalidate  a  will  as  a  matter  of  law;  *  nor  the  belief 
in  clairvoyance,  mesmerism,  faith-cures,  Christian  science,  or  other 
matters  upon  which  the  majority  of  society  are  found  skeptical.'^ 
To  mal^e  evidence  of  such  belief  admissible  at  all  to  show  mental 
incapacity  it  must  first  appear  that  the  will  was  the  offspring  of 
such  belief.  Even  were  one  thought  insane  instead  of  credulous 
(or  possibly  wise)  on  such  subjects,  he  might  still  be  unimpaired 
in  general  testamentary  capacity.  But  where  such  a  belief  affects 
<lirectly  the  provisions  of  the  will,  perverts  them  from  their  just 
and  natural  course,  and  gives  an  irrational  tincture,  so  (to  speak, 
to  the  whole  instrument,  a  serious  issue  is  presented  at  tlie  probate. 
It  is  a  peculiarity  of  spiritualism,  that  the  believer  considers  him- 
self guided  in  his  conduct  by  invisible  agencies ;  for  which  reason 
one  rather  recent  case,  at  least,  under  this  head  seems  to  regard 
undue  influence  ra,tlier  than  insane  delusion  and  incapacity  as  the 
ground  upon  which  such,  wills  should  be  assailed.^  But  this  refines 
too  greatly  the  scope  of  controversy  in  suoh  cases ;  for  we  should 

2.  Supra,    §§    150,    151,   157,    158.  Iowa,  23,  15  N.  W.  581;   Robinson  v. 

3.  Addington  v.  Wilson,  5  Tnd.  137,  Adams,  63  Me.  369;  Smith's  Vvill,  52 
61  Am.  Dec.  81;  Kelly  v.  Miller,  39  Wis.  543,  8  N.  W.  616,  38  Am.  Rep. 
Miss.  19;  Thompson  v.  Thompson,  21  756;  Middleditch  v.  Williams,  45  N. 
Barb.  107,  2  Bradf.  (N.  Y.)  449;  J.  Eq.  726.  17  A.  826.  But  cf.  Lyon 
Leech  v.  Leech,  4  Am.  L.  J.  179 ;  Ved-  v.  Home,  L.  R.  6  Eq.  655,  1  Redf . 
der,  Re,  6  Dem.   (N.  Y.)   92.  Wills,    163. 

4.  Brovm  v.  Ward,  53  Md.  376,  5.  La  Bau  v.  Vanderbilt,  3  Redf. 
36  Am.  Rep.  422;   Otto    v.    Doty,    61  (N.  Y.)    384. 

6.  Robinson  v.  Adams,  62  Me.  369. 

189 


§  168 


LAW  OF  WILLS. 


[part   II. 


still  treia't  these  spirituial  whisperings,  like  dreams  or  visions,  as 
the  testator's  own  deilusion,  and  consider  him  a  capable  or  incap- 
able testator,  on  general  grounds.  If  he  made  his  will  at  tibe 
dictation  of  a  clairvoyant  or  other  adviser  palpable  in  the  flesh,, 
that  of  course  is  another  matter.^  As  to  beings  invisible  and  in- 
tangible, however,  one's  speculative  belief  in  their  existence  need 
not  affect  his  testamentary  capacity  at  all ;  but  if  one  is  possessed 
by  spirits  or  the  devil,  when  his  will  is  made,  it  is  enough  that  tih© 
will  is  found  the  product  of  a  deluded  or  deranged  mind,  tO'  justify 
setting  it  aside  when  inofficious,  without  attempting  to  resolve 
what  views  of  disposition  the  spirits  or  the  devil  pressed  upon  tiio 
testator  or  how  hard  they  pressed  them.^ 


7.  Cf.  Thompson  v.  Hawks,  14  Fed. 
Rep.  902;  Greenwood  v.  Cline,  7  Or. 
17;  O'Dell  V.  Goff,  149  Mich.  152,  119 
Am.  St.  Rep.  662,  10  L.  R.  A.  (N.  S.) 
989,  112  N.  W.  736  (drawing  the  dis- 
tinction as  to  such  undue  influence)  ; 
Irwin  V.  Laffin,  135  N.  W.  759  (S. 
D.). 

8.  In  Smith's  Will,  52  Wis.  543, 
supra,  the  testator  was  one  wliom 
many  regarded  as  crazy,  and  who  was 
certainly  quite  eccentric.  He  believed 
in  spiritualism,  married  a  second 
time,  and  claimed  that  the  spirit  of 
his  first  wife  approved  his  choice,  as 
well  a.s  the  will  which  he  afterwards 
made  in  favor  of  the  second  wife,  to 
the  exclusion  of  the  first  wife's  chil- 
dren. The  court  sustained  the  will ; 
resting,  however,  with  much  confi- 
dence upon  the  peculiar  circumstances 
which  proved  the  will  by  no  means  an 
unjust  one.  The  testator  had  lived 
happily  with  his  second  wife;  and  it 
was  not  through  her  fault  alone  that 
she  and  the  children  by  the  former 
marriage  did  not  get  on  well  togetlier. 
These  children  wore  all  adults,  and 
able  to  provide  for  themselves;   while 


the  whole  property,  after  settling  up 
the  estate,  would  not  be  more  than 
enough  for  the  widow's  comfortable 
support. 

Upon  the  matter  of  spiritual  influ- 
ences, the  spirit  of  the  first  wife  did 
not  guide  the  testator,  according  to  his 
assertions  which  were  submitted  in 
proof,  but  only  declared  an  approval 
of  the  will  after  he  had  made  it.  And 
while  the  testator  had  often  professed 
to  be  guided  in  his  worldly  afi'airs  by 
various  spirits,  it  a.ppeared  that  a 
positive  faith  in  the  accuracy  of  his 
own  judgment  served  as  an  important 
counterpoise  to  the  delusions  he  might 
have  entertained.  He  had  himself  once 
declared,  after  some  ill  experience 
with  advice  of  that  kind,  that  there 
appeared  to  be  some  spirits  which 
tried  to  fool  him,  and  others  which 
did  not. 

See,  further,  Orchardson  v.  Co- 
field,  171  111.  14,  63  Am.  St.  Rep.  211, 
49  N.  E.  197,  161  111.  114,  43  N.  E. 
7S9;  McClary  v.  Hull,  44  Neb.  175, 
62  N.  W.  501;  Spencer's  Estate,  31 
P.  453,  96  Cal.  448;  Bu-lianan  v. 
Picrie,    54    A.    583,    205    Penn.    123, 


190 


CHAP,    ix]  PKOOF    OF    CAPACITY    AND    INCAPCITY.  §    IGD 

CHAPTER  IX. 

PROOF  OF  CAPACITY  AND  INCAPACITY. 

§  169.  In  Uncontested  Cases  of  Probate,  much  is  taken  for 
granted  by  the  Court. 
Wherever  a  will  is  presented  for  probate  and  no  contestantt 
appears,  most  of  the  facts  essential  for  establishing  the  instrument 
are  readily  taken  for  granted.  In  England  there  is  a  simple  mode 
of  pTOcedure  for  non-contested  cases,  known  as  the  probate  in 
common  form;  and  though  few  American  States  appear  to  have 
expressly  adopted  that  mode  in  so  many  words,  yet  we  often  find 
the  proof  of  the  will  reduced  to  a  minimum  in  effect  under  such 
circumstances.^  Capacity  in  the  aduJt  testator  is  readily  inferred 
from  his  due  execution  of  the  instrument ;  while  as  for  the  f aot  of 
his  death,  of  his  last  place  of  residence,  the  question  who  are  his 
kindred,  or  his  heirs-at-law,  the  identity  of  the  executor  named,  and 
the  like,  all  these  matters  are  prima  facie  inferred  by  the  court  from 
unsworn  ^^  recitals  of  the  petition  for  probate,  with  little  or  no 
formal  examination.  Since  the  probate  tribunal's  of  original  juris^ 
diction  are,  under  our  political  systean,  counjty  or  local  tribunals, 
the  main  facts  of  this  character  are  often  a  matter  of  public  no- 
toriety ;  but  it  is  not  upon  tJiis  consideration  alone  ithat  the  judge 
passes  the  insitrument  'to  probate  upon  so  brief  a  scrutiny.  He 
relies  considerably  upon  the  citation  of  interested  parties,  which 
issued  before  thie  petition  for  probate  could  come  up  for  a  hear- 
ing ;  and  the  interested  parties  not  having  appeared  or  making  no 
opposition,  he  readily  presumes,  upon  slight  proof  of  execution, 
not  only  that  the  will  is  what  it  purports  to  be,  but  that  the  great 
facts  essential  to  the  validity  lan'd  operation  of  the  instrument  con- 
cur in  making  the  probate  effectual. 

97  Am.  St.  Rep.  725;  Eandall,  Re,  59  1.  See  Schoul.  Exrs.  §  1065  on  this 

A.    552,   99   Me.   396;    Scott  v.   Scott,  subject    (Vol.  II). 

72  N.  E.   708,   212  111.  599    (Sweden-  la.  Sworn,  as  some  later  codes  re- 

borgianism)  ;    Sieb's    Estate,    126    P.  quire. 

912,  70  Wash.  374. 

191 


§     170  LAW  OF  WILLS.  [PAET    II 

A  certain  sobriety  and  decorum  is  preserved  in  tliese  judicial 
proceedings,  as  at  the  funeral ;  as  thoug^K  some  painful  but  neces- 
sary solemnity  over  tihe  deceased  must  be  carried  out  without 
probing  officiously  the  feelings  and  disposition  of  the  surviving 
family,  but  rather  anticipating  their  presumed  wishes. 

§  170.  In  Contested  Cases,  the  Burden  of  Proof  is  upon  the 
Propounder  of  the  Will. 
But  whenever  a  contest  arises  over  the  will, —  a  situation  of 
affairs  unlikely  to  occur  before  the  bereaved  family,  heirs,  kin- 
dred, and  interested  parties  have  had  private  warning,  (that  some 
of  their  own  number  are  too  profoundly  dissatisfied  not  to  break 
through  this  atmosphere  of  decorum,  and  readily  expose  to  scandal 
the  home  relations  of  the  decedent, —  it  becomes  a  preliminary 
inquiry  upon  which  of  the  litigating  parties  rests  the  burden  of 
proof.  There  is,  more  however  in  appearance  than  reality,  a  vari- 
ance of  opinion  expressed  in  the  reports  on  this  point.  The  true 
i-ule  we  conceive  to  be  this:  that  wherever  the  capacity  or  in- 
capacity of  the  testator  is  called  in  question,  whether  because  of 
infancy  or  insanity,  or  on  any  other  of  the  grounds  we  have  al- 
ready considered,  and  so,  too,  if  the  testator's  death,  residence  to 
give  jurisdiction,  a  due  execution,  or  any  other  fact  essential  to 
■establishing  a  probate  of  the  instrument  is  disputed,  the  formal 
burden  of  proof  is  upon  the  executor,  or  those  who  set  up  the  par- 
ticular will  in  controversy.  And  this  rule  holds  good  in  whatever 
form  the  trial  should  properly  be  conducted,  whether  in  original 
forum  of  probate,  or  upon  appeal,  so  long  as  the  issue  is  directly 
taken  upon  the  probate  of  that  identical  will.^  In  general,  the 
proponent  of  a  will  has  the  burden  of  proving  its  lawful  execution 
and  that  it  was  duly  executed  by  a  competent  party.^ 

2.  1  Groenl.  Evid.   §   77;   Chamber-  3.  Whore  direct  contest  is  mnde  as 

layne  Evid.  §  955;   1  Redf.  Wills,  31,  to  the  capacity  of  the  testator,  or  the 

and  cases  cited;  Hall  v.  Perry,  87  Me.  exertion  of  undue  influence  upon  Iiim, 

569,  47  Am.  St.  Rep.  352,  33  A.  160;  they  who  attack  frequently  supply  in- 

Prentia   v.    Bates,   93    Mich.   234,    53  cidental    proof    that    the    instrument 

N.  W.  l.'")3,  17  L.  R.  A.  494;  and  see  was  duly  executed, 
cases  infra. 

192 


CHAP,    ix]  PROOF    OF    CAPACITY   AND    INCAPCITY.  §    l7l 

This,  as  Judge  liedfield.  lias  observed,  is  in  analogy  to  pro- 
ceedings upon  other  instruments  ot  contracts,*  which  are  contested 
either  upon  the  ground  of  want  of  execution,  or  want  of  capacity 
in  the  person  contracting,  or  of  fraud  in  procuring  the  contract. 
In  all  of  which  cases  the  formal  burden  of  proof  being  upon  the 
party  setting  up  tlie  instrument,  he  iis  allowed  to  go  forward  in 
the  proof  and  in  the  argument.^  For  where  the  issue  of  fact  re- 
lating to  the  validity  of  a  will  is  tried  by  a  jury,  the  main  issue, 
to  which  all  other  issues  must  be  snibordinate,  is  that  of  the  legal 
execution  of  the  will  by  one  of  testamentary  capacity. 

§  171.  The  Rule  of  Burden  of  Proof  sometimes  laid  down  other- 
wise as  to  Mental  Capacity. 

There  are,  nevertheless,  numerous  cases  in  which  the  rule  as  to 
burden  of  proof  appears  to  have  been  laid  down  by  eminent  judges 
to  the  contrary.  These  cases  hiave  direct  reference  to  issues  of 
mental  soundness  and  unsoundness;  and  to  this  subject  our  prasent 
inquiry  will  now  be  directed.  The  confusion  in  the  legal  mind  on 
this  subject  comes  perhaps  fro^m  expatiating  beyond  such  facts  as 
the  particular  case  presented  for  decision.  Often,  where  it  might 
hastily  be  inferred  that  the  burden  of  proof  was  placed  originally 
upon  conitesit-ants  of  the  will  instead  of  the  proponent,  .the  court 
hiad  in  reality  presumed  capacity  from  a  slight  presentiment  of 
facts  by  such  proponent,  and  treated  the  burden  as  actually  so 
shifted  in  consequence,  that  the  contestant  would  be  put  neces- 
sarily to  the  proof  of  esitablishing  incapacity  against  this  present- 

4.  But  we  should  note  that  probate,  be   proved   as   an   exhibit,   viva   voce, 

as  understood  at  the  present  day,  is  in  chancery,  though  a  deed  may  ba; 

a    formality    to   which    other    instru-  for  there  must  be  liberty  to  cross -ex- 

ments  or  contracts  are  not  subjected  amine  as  to  sanity."    Barry  v.  Butlin, 

by  any  analogy,  being  a  unique  sort  1  Curt.  637. 

of    procedure    appropriate    to     wills.  5.  Redf.  Wills,  31;  also  cases  infra, 

"  Sanity,"  says  Baron  Parke,  "  is  the  where  sanity  is  the  issue.     But  as  to 

great  fact  which   the  witness   to  the  setting    aside,    after    probate    of    the 

will  has  to  speak  to  when  he  comes  will  has  been  duly  granted,  cf.  §  213a; 

to  prove  the  attestation;   and  this  is  103  N.  E.  268,  260  111.  299. 
the  true  reason  why  a  will  can  never 

13  193 


§    172  LAW  OF  WILLS.  [PAKT    II. 

ment.  And,  again,  as  mental  derangement  may  be  followed  by 
raental  soundness,  or  vice  versa,  and  tlie  disorder  itself  is  subject 
to  lucid  intervals,  it  is  obvious  that  the  burden  of  proof  must  in 
suxih  cases  be  ligbtJy  adjuste.d,  and  slide  almost  imperceptibly  from 
one  litiganit  to  the  other.  Surely  one  who  offers  the  will  for  pro- 
bate cannot  be  expected  to  go  far  with,  testimony  to  prove  a  nega- 
tive. 

It  is  only  in  this  delicate  investigation  of  mental  condition,  and, 
moreover,  of  free  volition  in  tiie  testator  (of  which  latter  subject 
we  shall  treat  in  the  next  chapter  ®)  that  judicial  variance  may  be. 
expected.  Rarely  do  such  other  essential  facts  as  death,  last  place 
of  residence,  or  full  age,  elicit  discussion  of  this  kind  at  all ;  and 
if  ever  they  did,  the  point  at  issue  being  so  comparatively  simple, 
we  should  see  more  clearly  that  it  is  the  proponent,  not  the  con- 
testant of  tlie  will,  wiho  moves  in  advance,  and  carries  the  general 
burden  of  proving  whatever  may  be  requisite  to  establishing  the 
particular  instrument  in  a  court  of  probate  as  legally  the  last  will 
and  testament  of  the  deceased. 


§  172.  Burden  of  proving  Capacity;  Presumption  in  favor  of 
Sanity;  Confusion  of  Rules. 
The  issue  of  great  consequence  being  then  whether  or  not  the 
testator  was  of  sound  mind  when  tlie  will  was  executed,  two  prin- 
ciples are  laid  down  which  seem  to  conflict.  The  first,  as  already 
sitated,  is  that  upon  tbe  proponent  rests  the  general  burden  of 
eetablisibing  capacity,  or,  in  odier  words,  sanity.  The  second  is, 
that  a  presumption  arises  tbat  every  adult  is  compos  mcntw,  and 
consequently  that  the  party  who  alleges  insanity  has  the  burden  of 
proving  that  unnatural  condition.  In  this  apparent  contradiction 
originates  our  present  confusion;  and  from  tthe  abundant  dicta  to 
bo  found  in  the  reports,  one  might  argue,  as  an  abstract  proposi- 
tion, that  the  burden  was  on  the  one  party  or  the  other,  as  best 
suited  his  purpose. 

6.  See  next  c.  as  U>  undue  influence,  et<;. 

194 


CHAP,    ix]  PROOF    OF    CAPACITY    AND    INCAPCITY.  §    17S 

§  173.  English  Authorities  on  this  Subject. 

In  England  it  is  laid  down  that  if  a  party  impeaches  a  will  an. 
aocount  of  insianity  in  the  testator,  he  must  establish  such  insanity 
by  clear  and  saitisfactory  proof;  for  the  instrumenit  purporting  on 
its  face  a  legal  act,  sanity  must  be  presumed  until  the  contrary  is 
shown.^  At  the  same  time  it  should  be  borne  in  mind  that  the 
presumption  of  sanity  is  not  to  be  treated  as  a  legal  presumption, 
but  at  the  utmost  as  a  mixed  presumption  of  law  and  fact  (if  not 
as  a  mere  presumption  of  faot)  ;  that  is,  an  inference  from  tbe 
absence  of  evidence  to  sihow  that  the  testator  bad  not  tbat  mental 
soundness  wbich  experience  shows  to  be  tbe  geneTal  condition  of 
the  hiiman  mind.  If,  tberefore,  an  adult's  will  is  produced  before 
a  jury,  its  execution  duly  proved  and  no  other  evidence  offered, 
the  jury  would  be  properly  instructed  to  fintd  for  the  will.  And 
if  the  party  opposing  the  will  gives  some  evidence  of  incompe- 
tency, the  jury  may,  nevertheless,  find  in  favor  of  the  will  if  it 
does  not  disturb  their  belief  in  the  testator's  competency.  And 
in  such  case  the  presumption  of  competency  would  prevail.  Still 
the  onus  iirohandi  lies  in  every  case  on  the  party  'alleging  a  will^ 
and  he  must  satisfy  the  jury  that  it  i®  the  will  of  a  capable  tes- 
tator; and  when  the  whole  matter  is  before  them  on  evidence 
given  on  both  sides,  if  the  evidence  does  not  satisfy  them  that  the 
will  is  the  will  of  a  competent  testator,  thiey  oughit  not  to  affirm  by 
their  verdict  that  it  is  so.^  The  same  considerations  should  apply 
where  it  is  a  judge  instead  of  a  jury  who  decides  upon  the  evi- 
dence. 

On  the  whole,  therefore,  the  Englisih  rule  appears  to  be,  that  if 
an  adult's  will,  rational  on  the  fact  of  it,  is  shown  to  have  been 
duly  executed,  it  is  presumed,  in  tie  absence  of  any  evidence  to 
the  contraay,  that  it  was  made  by  -a  person  of  competent  imder- 

7.  1  Wms.  Exrs.  20,  citing  Groom  6  Ir.  Eq.  611.  The  rules  stated  in 
V.  Thomas,  2  Hagg.  434,  and  Burrows  the  text  are  formulated  from  Sutton 
V.  Burrows,  1  Hagg.  109.  v.  Sadler,  which  is  a  leading  case  in 

8.  1  Wms.  Exrs.  21;  Sutton  v.  Sad-  point.  Here  was  an  action  by  the 
ler,  3  C.  B.  N.  S.  87;  Symes  v.  Green,  heir-at-law  against  devisees,  and  the 
1  Sw.  &  Tr.  401;  Keays  v.  M'Donnell,  validity  of  a  will  was  involved. 

195 


§     iT-i'  LAW  OF  WILLS.  [PAET    II. 

standing.  But  if  there  are  circumstances  not  merely  opposed  to, 
hut  sufficient  to  counterbalance  that  presumption,  the  decree  must 
be  against  thie  validity  of  the  will,  unless  the  evidence,  taken  al- 
together, is  sufficient  to  establish  affirmatively  that  the  testator 
was  of  sound  mind  when  he  executed  it.^  Such  a  statement  seems 
to  import,  and  correctly  too,  that  the  burden  being  on  the  pro- 
ponent of  the  will  tliroughiout,  he  has  made  out  his  prima  facie 
case  of  testamentary  capacity  when  he  shows  a  rational  instrument 
properly  signed  and  witnessed.  But,  on  the  other  hand,  the  evi- 
dence esitablishing  due  execution  should  leave  a  favorable  impres- 
sion of  capacity;  and  testamentary  incapacity  may  be  established 
by  the  mere  cross-examination  of  the  proponent's  witneisses,  with- 
out any  direct  evidence  on  the  part  of  the  contestant.-^ 

§  174.  American  Authorities  on  this  Subject. 

These  English  authorities  embody  the  best  elementary  rules,  we 
think,  for  resohdng  a  ooniliot  of  principles,  which,  after  all,  is 
more  apparent  than  real ;  holding  the  proponent  to  his  general 
proof,  while  giving  to  the  presumption  of  sanity  all  that  can  fairly 
be  claimed  for  it.  From  this  point  of  view,  the  presumption  in 
favor  of  sanity  where  testamentary  causes  are  tried  is  not  strictly 
a  legal  one,  but  rather  one  of  fact;  and  tbe  prima  facie  case  in 
favor  of  the  proponent,  when  the  will  is  asisailed  as  the  offspring 
of  insanity,  not  only  does  not  relieve  him  from  estaJblishing  capac- 
ity as  the  ultimate  conclusion  upon  the  whole  evidence,  but  is 
itself  the  result  of  facts  he  has  establisihed  at  the  outset,  a  first 
stage  reached  in  propounding  the  will.     The  adult's  will,  not  an 

9.  1  Jarm.  Wills,  35,  note;    Symes  posed    on    the    party    propounding    a 

V.  Green,  supra.  will;    it   is   in  general  discharged  by 

1.  Keays    v.    M'Donnell,    6    Ir.    Eq.  proof  of  capacity  and  the  fact  of  ex- 

01 1.  ecution."      And    he    further    proceeds 

"  The  strict  moaning  of  the  term  to  show  that  the  fact  of  capacity  is 
'  onus  prohandi '  is  this,"  says  Baron  so  far  involved  in  the  proof  of  the 
Parke:  "that  if  no  evidence  is  given  execution,  that  the  other  pnrty  may 
by  the  party  on  whom  the  burden  is  cross-examine  the  subscribing  wit- 
cast,  the  issue  must  be  found  against  nesses  upon  that  point.  Barry  v. 
him.      Tn    all   cases   this   onus    is   im-  Butlin,  1  Curt.  637. 

19G 


CHAP,    ix]  PROOF    OF    CAPACITY    A^TD    INCAPCITY.  §    174 

irratiomal  one  on  its  face,  is  shown  to  have  been  properly  executed 
and  witneesied ;  hence  it  may  fairly  be  prosiunod  tbat  the  testator 
was  competent  and  unrestrained  in  disposing  of  his  property ;  but 
these  presumptions,  being  of  fact  or  of  mixed  law  and  fact,  may 
be  rebutted,  so  diat  the  proponent  has  nothing  more  than  a  prima 
facie  case  in  his  favor. 

In  various  Sitates,  however,  the  presumption  in  favor  of  sanity 
has  been  styled  a  legal  presumption,  and  appears  to  have  been  so 
treated  in  testamentary  causes.  In  an  important  Massachusetts 
case,  a  majority  of  the  court  ruled  that  the  legal  presumption,  in 
the  absence  of  evidence  to  the  contrary,  is  in  favor  of  tlie  sanity 
of  a  'testator ;  a  statement  from  which  one  judge  dissented,  though 
all  the  court  agreed  that  this  does  not  change  the  burden  of  proof, 
which  always  rests  upon  those  seeking  tlie  probate  of  the  will.^ 
The  IvTew  York  doctrine  (agreeably  to  the  common  law  and  the  local 
statute  expression)  is  stated  more  recently  to  the;  same  effect: 
namely,  that  the  legal  presumption,  to  begin  with,  is  that  every 
man  is  compos  mentis,,  and  the  burden  of  proof  that  he  is  non 
compos  mentis  rests  on  the  party  who  alleges  that  condition  of 
mind.  "  But  it  is  also  the  rule,"  adds  the  court,  "  fthat,  in  the 
first  instance,  the  party  propounding  the  will  must  prove  the  men- 
tial  capacity  of  the  testator."  ^  Other  opinions  are  expressed  to 
the  same  effect.*  A  discrepancy  of  statement  in  this  respect,  how- 
ever, is  sometimes  referred  to  the  construction  of  some  local  statute 
of  wills.^ 

This  difference,  though  much  dilated  upon,  is  more  verbal  than 
substantial,  as  commonly  applied.  All,  or  most,  of-  onr  decisions 
agree  in  substance,  that  whether  as  a  legal  presiumption  or  as  a 

2.  Baxter  v.  Abbott,  7  Gray,  71,  83  Wms.  Exrs.  21,  Am.  edition;  Aikin  v. 
(1856),   Thomas,   J.,  dissenting.     Cf.  Weckerly,  19  Mich.  482. 
Crowninshield     v.    Crowninshield,     2  5.  See  Hoar,  J.,  in  Baldwin  v.  Par- 
Gray,  524.  ker,  99  Mass.  79;  Knox's  Appeal,  26 

3.  Harper  v.  Harper,  1  N.  Y.  Supr.  Conn.  20;  Baker  v.  Baker,  67  N.  E. 
351,  citing  Delafield  v.  Parish,  25  N.  410,  202  111.  595,  69  P.  294,  136  Cal. 
Y.  9.  558. 

4.  See   Perkins's    ample   note   to    1 

197 


S     174:' 


LAW  OF  WILLS. 


[part   II. 


presumption  of  fact  or  mixed  presumption,  amounting  only  to  a 
prima  facie  case,  there  exists,  upon  proof  that  the  will,  a  natural 
one  on  its  face,  was  duly  executed  by  an  adult  not  O'therwise  in- 
capacitated, a  presumption  in  favor  of  the  tesitator's  sanity  which, 
they  who  impeach  tJie  will  are  bound  at  tliis  stage  to  overcome.® 
And  the  larger  and  better  class  of  American  authorities  point, 
moreover,  to  the  conclusion  that  the  court  or  jury  trying  the  case 
must,  upon  the  whole  evidence,  by  a  fair  preponderance,  be  satis- 
fied that  the  testator  was  of  sound  mind ;  so  that  if  there  be  inevit- 
able doubt  left  on  this  point  from  all  of  the  testimony,  the  will 
cannot  be  considered  as  proved.^  This  conforms  practically  to  the 
English  rule  already  stated.^ 


6.  1  Wms.  Exrs.  21,  Am.  Ed.,  note 
by  Perkins;  Cotton  v.  Ulmer,  45  Ala. 
378,  6  Am.  Rep.  703;  Thompson  v. 
Kyner,  65  Penn.  St.  368;  Perkins  v. 
Perkins,  39  N.  H.  163;  Kempsey  v. 
McGinnis,  21  Mich.  133;  Herbert  v. 
Berrier,  81  Ind.  1;  Day  v.  Day,  2 
Green  Ch.  549;  Fee  v.  Taylor,  83  Ky. 
259,  130  111.  69,  22  N.  E.  353;  Mc- 
Cnlloch  V.  Campbell,  49  Ark.  367,  5 
S.  W.  590;  Allen  v.  Griffin,  69  Wis. 
529,  35  N.  W.  21;  Wagner  v.  Ziegler, 
44  Ohio  St.  59,  4  N.  E.  705,  179  Penn. 
386,  36  A.  1130;  Barber's  Appeal,  63 
Conn.  393,  22  L.  R.  A.  90,  27  A.  973; 
Hull's  Will,  89  N.  W.  979,  117  L)Wa, 
738;  Merriman  v.  Merriman,  55  N. 
E.  734,  153  Ind.  631,  63  S.  W.  617, 
23  Ky.  Law,  627;  Jones  v.  Collins, 
51  A.  398,  94  Md.  403,  73  S.  W.  129, 
173  Mo.  59;  Wilkinson  v.  Service,  94 
N.  E.  50,  249  111.  146;  Mordecai  v. 
Canty,  68  S.  E.  1049,  86  S.  C.  470; 
McXitt's  Estate,  78  A.  32,  229  Pa. 
71;  Martin's  Will,  144  N.  Y.  S.  174; 
Wells  V.  Tliomp.son,  78  S.  E.  823,  140 
Ga.  119,  47  L.  R.  A.  (N.  S.)  723, 
157  S.  W    609,  350  Mo.  633;  Cherry's 


Will,  79  S.  E.  288,  164  N".  C.  363. 

7.  Crowninshield  v.  Crowninshield, 
2  Gray,  524;  Delafield  v.  Parish,  25 
N.  Y.  9 ;  Robinson  v.  Adams,  62  Me. 
369,  16  Am.  Rep.  473;  McGinnis  v. 
Kempsey,  27  Mich.  363;  1  Jarm. 
Wills,  38;  Turner  v.  Cook,  36  Ind. 
129;  Tingley  v.  Cowgill,  48  Mo.  291; 
Williams  v.  Robinson,  42  Vt.  658,  1 
Am.  Rep.  359;  Aiken  v.  Weckerly,  19 
Mich.  482;  Knox's  Appeal,  26  Conn. 
20;  Renn  v.  Lamon,  33  Tex.  760; 
Thompson  v.  Kyner,  65  Penn.  St. 
368;  Boardman  v.  Woodman,  47  N. 
H.  120;  Wetter  v.  Habersham,  60  Ga. 
193;  26  Penn.  St.  404;  Day  v.  Day, 
2  Green  Ch.  549;  2  Rich.  329,  70  N. 
E.  675,  209  111.  193 ;  Fulton  v.  Umber- 
hend,  67  N.  E.  829,  182  Mass.  487; 
Rathjons  v.  Merrill,  80  P.  754.  38 
Wash.  482;  Baker  v.  Baker,  67  N.  E. 
410,  202  111.  595;  Slaughter  v. 
Heath,  127  Ga.  747,  57  S.  E.  69,  103 
Me.  72,  118  Am.  St.  Rep.  266;  Van 
Don  Heuvel's  Will,  136  N.  Y.  S.  1109; 
Pickett's  Will,  89  P.  377,  49  Oreg. 
127;  Pepper  v.  Martin,  92  N.  E.  777, 
175  Ind.  580. 


198 


€HAP.  ix]     PROOF  OF  CAPACITY  AND  INCAPCITY. 


§  175 


§  175.  The  Same  Subject:  Whether  Subscribing  Witnesses  must 
first  testify  as  to  Insanity. 
A  mo'ro  difficult  iiKjuiry  suggested  in  this  connection  relates  to 
the  duty  of  offoi-ing  positive  pax)of  of  capacity  from  the  witnesses 
to  tlie  will.  One  would  suppose  that  the  simple  fact  that  two  wit- 
nesses or  more  (according  as  the  local  statute  may  have  pre- 
scribed), append  'their  signatures  in  the  execution  of  the  will, 
strengthens  materially  any  presumption  which  may  arise  in  favor 


If,  however,  a  local  statute  puts 
one  burden  upon  the  contestant,  or 
mce  versa,  that  statute  must  regu- 
late. 86  P.  695,  149  Cal.  227.  And 
cf.  §  213a,  post.  See  also  Chamber- 
layne  Evid.  §  955;  Bensberg  v.  Wash- 
ington University,  158  S.  VV.  330,  251 
Mo.  641   (statute). 

"  In  the  course  of  the  trial  the  bal- 
ance of  testimony  may  fluctuate  from 
one  side  to  the  other,  but  the  burden 
of  proof  remains  where  it  was  at  the 
outset;  and  unless  at  the  close  of  the 
trial  the  balance  is  with  the  propon- 
ent, he  must  fail.  It  is  not  suffici- 
ent that  the  scales  stand  even;  there 
must  be  a  preponderance  in  his 
favor."  Per  curiam  in  Williams  v. 
Robinson,  supra. 

In  some  opinions  quite  extreme 
grounds  is  taken  against  any  pre- 
sumption of  a  testator's  sanity.  Wil- 
liams V.  Robinson,  42  Vt.  658,  is  a 
case  in  point.  See  also  Robinson  v. 
Adams,  and  Knox's  Appeal,  supra. 
"  The  presumption  that  the  person 
making  a  will  was  at  the  time  sane, 
is  not  the  same  as  in  the  case  of  the 
making  of  other  instruments;  but  the 
sanity  must  be  proved."  Gerrish  v. 
Nason,  22  Me.  438.  And  see  Cilley  v. 
Cilley,  34  Me.  162.  And  opinions 
like  these  distinguished  wills  from 
such   instruments   as   a   deed   or   con- 


tract, which,  if  executed,  are  pre- 
sumed to  be  rationally  executed ;  or 
construe  in  support  of  their  theory 
such  local  statutes  as  provide  that 
"  all  persons  of  sound  mind "  may 
make  wills. 

But  in  Higgins  v.  Carlton,  28  Md. 
115,  92  Am.  Dec.  666,  not  only  is  the 
distinction  taken  between  deeds  and 
wills  repudiated,  but  the  presumption 
of  sanity  is  asserted  quite  as  strongly 
in  the  other  direction.  And  here  it 
is  ruled  with  emphasis  that  the  bur- 
den of  proof  lies  upon  the  person  who 
asserts  unsoundness  of  mind.  See 
also  the  judicial  remarks  in  Sloan  v. 
Maxwell,  2  Green  Ch.  580;  Tyson  v. 
Tyson,  37  Mo.  567;  Grubbs  v.  Mc- 
Donald, 91  Penn.  St,  236;  Gray  v. 
Rumrill,  44  S.  E.  697.  101  Va.  507. 

The  safer  opinion  steers  between 
these  two  extremes;  and  nothing  bet- 
ter reconciles  the  discrepancy  of  opin- 
ions as  thus  expressed  (for,  after  all, 
some  discrepancy  must  be  admitted) 
than  to  compare  the  cases  by  their 
respective  decisions  upon  the  facts  ac- 
tually presented.  If  we  do  this,  we 
shall  find  the  conflict  reduced  to  a 
very  narrow  range.  Where  no  evi- 
dence of  incapacity  is  produced,  very 
slight  evidence  of  capacity  should,  at 
all  events,  be  enough  for  a  favorable 
presumption. 


199 


§    175  LAW  OF  WILLS.  [pART    IL 

of  the  testator's  sanity,  or  the  prima  facie  case  on  behalf  of  the  will. 
For  why  should  two  or  thiree  have  signed  thus,  unless  intending 
some  sort  of  a  voucher  that  the  testa/tor  appeared  to  know  what  he 
was  about  ?  Though,  to  be  sure,  if  any  such  witness  were  closely 
questioned  in  court,  his  testimony  might  prove  the  reverse  of  fav- 
orable on  this  point.^  Unfortunately,  in  this  country  wills  are 
witnessed  out  of  good  nature  by  nersons  who  seem  quite  heedless  of 
the  responsibility  tihey  incur  in  so  doing ;  and  it  is  distinctly  ruled 
that  by  the  mere  fact  of  attestation  no  presiunption  is  afforded  of 
any  opinion  which  the  witness  may  have  had,  favourable  or  unfavor- 
able, cx)nceming  the  sanity  of  the  tesitator.^  But  the  cases  on  this 
point  are  not  quite  harmonious ;  and  we  may  still  infer  that  wher- 
ever execution  is  proved  of  a  will  natural  and  regular  upon  its  face, 
and  there  is  an  absence  of  further  evidence  upon  the  point  of  sanity, 
the  proponent  ought  to  be  entitled  to  probate.^ 

This  brings  us  to  the  real  practical  difference  between  American 
cases  which  hold  to  the  presumption  of  sanity  with  greater  or  less 
force :  namely,  that  in  some  courts,  contrary  to  the  general  opinion, 
it  is  held  tha.t  the  party  propounding  a  will  must  not  only  prove 
execution,  but  must  also  offer  positive  proof  of  his  testator's 
capacity.  Thus,  in  Massachusetts  practice,  the  subscribing  wit- 
nesses are  called  upon  to  testify  not  only  concerning  the  fact  of 
execution,  but  as  to  the  testator's  mental  condition  besides.    Withi- 

8.  Supra,  §  173.  .     .     ,     That    is    the    problem    to    be 

9.  By  English  tribunals,  a  subscrib-      solved."    And  see  §  181,  post. 

ing  witness  who  deliberately  purposes  1.  Baxter   v.   Abbott,    7   Gray,    71; 

to  testify  against  tlve  will,  is  looked  Boardman  v.  Woodman,  47  N.  H.  130; 

upon   with   great  disfavor.     In   Tat-  Thompson  v.  Kyner,  65  Penn.  St.  368. 

ham   V.    Wright,    2    Russ.    &    My.    1,  And  see  Williams  v.  Robinson,  42  Vt. 

where  two  subscribing  witnesses  had  664,  665. 

declared    they    would   testify    against  2.  Perkins  v.  Perkins,  39  N.  H.  169, 

the  testator's  capacity,  Tindal,  C.  J.,  and  eases  cited;   Baxter  v.  Abbott,  7 

made    this    severe    comment:      "The  Gray,  71;   Delafield  v.  Parish,  25  N. 

real   question   is,  whether   these   wit-  Y.  9;  Wilbur  v.  Wilbur,  129  111.  393, 

nesses  are  to  be   believed  upon   this  21  N.  E.  1076;  Waters  v.  Waters,  78 

evidence,    in    contradiction    to    their  N.  E.  1,  222  111.  26,  113  Am.  St.  Rip. 

own    solemn    act   in    the    attestation.  359. 

200 


CHAP,    ix]  PKOOF    OF    CAI'ACITY    AND    INCAPCITY.  §     175 

out  such  proof,  it  is  said,  no  will  can  be  set  lup.^  Should  their  testi- 
mony be  favorable,  the  prima  facie  case  in  favor  of  proba4:e  is 
no  douibt  strongly  fortified ;  if  'the  reverse,  little  remains  of  the  pre- 
sumption, legal  or  otherwise,  in  favor  of  sanity.  But  even  in 
Massachusetts,  were  all  the  witnesses  to  tlie  will  dead,  incapable, 
or  in  unknown  parts,  so  that  none  could  be  produced,  'the  execution 
of  the  will  could  be  proveed  by  evidence  of  their  handwriting; 
and  upon  this  proof,  without  other  evidence  showing  sanity  or  in- 
sanity, the  proponent  would  be  entitled  to  probate.*  In  many, 
perhaps  the  majority,  of  our  courts,  no  evidence  of  the  testator's 
competency,  nothing  beyond  the  mere  formal  proof  of  execution  in 
aid  of  the  natural  presumption  of  sanity  is  requisite  in  order  to 
make  out  a  'prima  facie  case  in  favor  of  the  will.^  And  op.  the 
whole,  American  authority  preponderates  to  the  view  that  when 
the  witnesses  produced  for  proba/te  are  not  only  questioned  upon 
the  fact  of  execution,  but  asked  besides  whether  they  regarded  the 
testator  as  of  sound  and  disposing  mind  and  memory,  this  last  is 
form  merely,  or  at  least  precautionary,  and  not  indispensable  to 
establishing  the  presumption  of  capacity  upon  which  probate 
should  be  granted.^ 

3.  Brooks  v.  Barrett,  7  Pick.  94;  execution,  and  may  then  wait  till 
Crowninshield  v.  Crowninshield,  2  some  impeachment  of  the  instrument 
Gray,  524,  per  Thomas,  J.;  Gerrish  v.  is  offered  by  counter-proof,  conforms 
Nason,  22  Me.  438.  "  The  presump-  to  the  English  rule.  Supra,  §  173 ; 
tionj  therefore,  that  the  person  mak-  Sutton  v.  Sadler,  3  C.  B.  N.  S.  87. 
ing  a  will  was,  at  the  time,  sane,  is  6.  See  Thompson,  C.  J.,  in  Thomp- 
not  the  same  as  in  the  case  of  the  son  v.  Kyner,  65  Penn.  St.  368.  And 
making  of  other  instruments,  .  .  .  Bell,  C.  J.,  in  Perkins  v.  Perkins,  39 
but  the  sanity  must  be  proved."  22  N.  H.  163,  168,  explains  this  practice 
Me.  438,  441.  (which     pertains     in     Pennsylvania, 

4.  Baxter  v.  Abbott,  7  Gray,  71.  New     Hampshire,     and     some     otlier 

5.  Perkins  v.  Perkins,  39  N.  H.  States  as  well  as  Massachusetts), 
163;  Beaubien  v.  Cicotte,  8  Mich.  9;  consistently  with  the  presumption  of 
TaflF  V.  Hosmer,  14  Mich.  309 ;  Thomp-  sanity.  "  Its  object  is,"  he  says, 
son  V.  Kyner,  65  Penn.  St.  568.  That  "that  if  it  appears  that  there  is 
the  party  propounding  the  will  is  not  either  doubt  or  suspicion  on  the  ques- 
obliged  to  examine  the  witnesses,  in  tion,  that  doubt  may  be  removed  be- 
the  first  instance,  beyond  the  fact  of  fore  the  estate  is  placed  in  the  hands 

201 


176 


LAW  OF  WILLS. 


[part   II. 


§  176.  When  Evidence  of  Unsoundness  appears  from  Examina- 
tion of  Witnesses,  Proponent  must  overcome  it. 

According  to  the  better  opinion,  if  witnessies  to  the  will,  in  the 
course  of  their  examination,  give  testimony  which  leaves  a  genuine 
doubt  of  the  isanity  of  the  testaitoT  at  the  date  of  execution,  the  pro- 
ponent cannot  rely  upon  any  general  presumption  of  sanity  in  aid 
of  his  proof  thiat  the  instrument  was  formally  execu'teid ;  he  cannot 
claim  that  no  evidence  of  insanity  has  been  given  by  the  contestant 
or,  if  given,  that  it  will  no  more  than  balance  the  presumption  on 
his  side;  but  having  himself  the  general  burden  of  proving 
capacity,  he  must  turn  the  scale,  or  the  will  he  offers  is  not  estab- 
lished.^ 

There  are  States,  it  is  true,  in  which  the  court  lays  down  a  rule 
less  favorable  in  expression  to  the  party  who  assails  a  will.  Testa- 
mentary capacity,  o'bseirves  a  Pennsylvania  ease,  is  the  normal 
condition  of  one  of  full  age,  and  the  aflB.rmative  is  with  the  party 
who  undertakes  'to  call  it  in  question ;  and  this  afBrmatiive  must  be 
established,  not  in  a  doubtful,  but  in  a  positive  manner.*  And 
other  dicta  may  be  found,  bearing  quite  as  strongly  against  the 
contestant  who  sets  up  insanity.*    But  when,  aside  from  such  dicta. 


of  a  man  who  may  prove  to  have  no 
title  to  it.  We  think  that,  although 
the  subscribing  witnesses,  if  they  can 
be  produced,  must  be  examined  in  re- 
lation to  the  soundness  of  the  testa- 
tor's mind,  yet  the  party  propound- 
ing a  will  for  probate  is  under  no 
general  duty  to  offer  any  evidence  of 
the  testator's  sanity,  but  may  safely 
rely  upon  the  presumption  of  the  law 
that  all  men  are  sane  until  some  evi- 
dence to  the  contrary  is  offered  " 

Statu t*!S  sometimes  undertake  to 
specify  the  proof  required.  See  40 
Minn.  371. 

7.  See  Aiken  v.  Weckerly,  19  Midi. 
482,  and  cases  cited.  Here  throe  wit- 
nesses testified.  One  of  them  api)e;irs 
to   have   given   no   opinion   as   to   the 

20 


testator's  sanity;  and  of  the  other 
two,  one  testified  that  the  testator 
was  sound,  and  the  other  that  he  was 
unsound.  See  also  Sutton  v.  Sadler, 
3  C.  B.  N.  S.  87;  Symes  v.  Green,  1 
Sw.  &  Tr.  401 ;  Bever  v.  Spangler,  93 
Iowa,  576,  61  N.  W.  1073.  See  Keays 
V.  M'Donnell,  6  Ir.  Eq.  611,  that  it  is 
enough  for  the  contestant  to  break 
down  the  witnesses  by  a  cross-exami- 
nation.    And  see  supra,  §  173. 

8.  Grubbs  v.  McDonald,  91  Penn. 
St.  236,  citing  other  Pennsylvania 
cases  on  this  point. 

9.  Dolafield  v.  Parish,  25  N.  Y.  9. 
])r()])ositions  laid  down  by  a  majority 
of  tlip  court;  i''roar  v.  Williams,  7 
I'.axt.  550;  44  N.  .1.  Va\.  154;  Taylor 
v.  Pegram,  151  III.  lOG. 

2 


■CHAP.    IX.]  riiOOr  01^'  CAPACITY  AND  INCAPACITY.  §    1T7 

we  examine  the  facta  passed  uipon  by  the  court,  we  shall  generally 
find  tliiat  the  decision  qiiiite  accords  with  the  proposition  we  have 
advanced ;  that  'the  witnesses  to  the  will,  so  far  as  their  testimony 
had  been  drawn  out,  affirmed  the  oapacity  of  the  testator ;  in  short 
tliat  there  was  no  equipoise,  but  a  turn  of  tine  scales  in  favor  of 
sustaining  the  will.  At  such  a  posture  the  proponent  may  well 
resit  his  case  unless  the  contestant  has  some  affirmative  proof  of 
insanity  to  offer.  But  certainly,  where  there  is  evidence  tending 
to  show  insanity,  the  court  must  not  rule  peremptorily  against  those 
who  oppose  the  will.^ 

On  an  issue  as  to  testamentary  capiacity,  where  tlie  evidence  is 
-conflicting,  after  a  fair  trial  before  a  jury  (as  ouir  probate  appeals 
from  the  county  judge  as  trier  are  commonly  conducted),  to  whom 
the  proof  is  submitted  under  propea*  instruction,  the  finding  of  the 
jury  concludes  thie  point. 

§  177.  Production  of  Subscribing  Witnesses  if  possible. 

Wherever  a  will  is  offered  for  probate,  the  subscribing  witnesses 
are  the  primary  and  chief  resource  for  establishing  the  instrument 
to  the  satisfaction  of  the  court  or  jury.  These  witnessies,  varying 
in  number  under  our  local  enactment®,  from  two  to  three  or  mo^re, 
should  be  produced  if  possible,  in  case  of  a  contest;  but  in  uncon- 
tested wills  or  a  probate  in  common  form,  a  less  number,  perhaps 
one,  may  usually  suffice ;  while  in  some  States,  even  when  opposed, 
the  proponent  calls  only  such  witnesses  as  may  give  him  a  good 
prima  facie  case,  and  there  restis.^  If  a  witness  be  dead,  incapable, 
or  in  parts  unknown  and  beyond  the  jurisdiction,  his  handwriting 
is  proved,  and  such  issues  as  the  present  musit  necessiarily  be  deter- 
mined without  him.^ 

As  to  the  production,  if  possible,  of  all  the  subscribing  witnesses 
by  the  party  propounding  the  will,  where  an  issue  is  made,  the 
American  rule  is  not  uniform.    In  Vermont,  for  instance,  all  must 

1.  Reichenbach  v.  Ruddacli,  127  123.  See  as  to  attestation,  etc.,  post, 
Penn.  St.  564.  §  348. 

2.  Thornton    v.    Thornton,    39    Vt.  3.  Baxter  v.  Abbott,  7  Gray,  71. 

203 


§    178  LAW  OF   WILLS.  [pART    II. 

be  pixxlucecl  and  examined  by  tbe  proponent  unless  this  is  shown 
to  be  impracticable/  The  Xew  Hampshire  rule  favors  summon- 
ing aJl  who  are  alive,  capable  and  within  the  jurisdictiou  where 
controversy  arises.^  In  Connecticut,  on  the  other  hand,  the  party 
propounding  the  will  need  not  produce  all  within  reach  of  process 
at  his  own  instance,  nor  unless  'the  contestant  insists  upon  it ;  and 
the  latter,  by  not  insisting,  will  be  presmued  tO'  have  waived  hi» 
privilege  in  that  respect.^  Still  less  ought  the  proponent,  if  he  has 
produced  all  these  witneases  in  court,  to  be  compelled  invariably 
to  ask  each  one  to  itestify ;  for  any  subscribing  witness  he  may  have 
omitted,  the  contestant  can  call  to  the  stand;  and  one  does  not 
choose  to  weaken  his  own  cause.  A  subscribing  witness,  after  being 
examined  by  the  one  party  may  be  cross-examined  by  the  other.' 

Even  where  a  will  is  contested,  it  may  be  regularly  established 
by  the  evidence  of  one  subscribing  witness  and  testimony  that  the 
other  or  otherts  actually  signed  as  such,  if  the  absence  of  the  latter 
be  duly  accounted  for  and  there  is  good  corroborating  evidence  of 
capacity.* 

§  178.  Testimony  of  Subscribing  Witnesses  Important,  but  not 
Conclusive. 
Great  v^^ight  is  attached  to  what  these  subscribing  witnesses  may 
have  to  say  concerning  the  testator's  apparent  mental  condition 
and  all  the  circumstances  surrounding  the  execution  of  the  will. 
Examination  and  cross-examination  may  elicit  from  them  much 
that  is  vitally  important  on  the  issue  of  testamentary  capacity^ 
But  though  these  parties  aire  witnesses  for  the  will,  and  the  pro- 
]X)nent  may  be  bound  to  produce  or  account  for  them,  or  even  to 
examine  all  in  turn,  they  are  not  his  witnesses  in  any  such  sense 

4.  Thornton  v.  Thornton,  39  Vt.  6.  Field's  Appeal,  36  Gonn.  277; 
122;    Alexander   v.   Beadle,   7   CoMw.      Attestation,  post. 

126.     A  witness  not  within  reach  of  7.  He  may  be  thus  discredited.     64 

State  process   need  not   be  pmduced.  Md.  138,  21  A.  273;  6  Ir.  Eq.  611. 

60  Vt.  524.  8.  Jones  v,  Roberts,  96  Wis.  427,  70 

5.  Whitman  v.  Morey,  63  N.  II.  448  N.  W.  685,  71  N.  W.  883.  Cf.  16& 
(probate  in  solemn   form).  111.  459,  48  N.  E.  113. 

204 


CHAP.  IX.]     PROOF  OF  CAPACITY  AND  INCAPACITY.  §  179 

as  to  detoar  him  from  disorediting  'tlieir  tesitimony  whenever  it 
bears  against  the  instrmuent  he  has  offered  for  pro'bate.  The  final 
decisiion  of  the  case  does  not  depend  upon  them,  but  upon  all  the 
evidence  adduced  on  both  sides.  The  value  of  the  subscribing  wit- 
ness's testimony  as  to  capacity  or  undue  iniluence  should  be  weighed 
like  tliat  of  any  O'thcr  witness.  And  the  fact  that  any  or  all  of  the 
subeciribing  witnesses  testify  against  the  testator's  mental  capacity, 
does  not  conclude  the  proponent,  if  other  witnesses  testify  favor- 
nbly ;  for  the  will  may  be  established  upon  sufBcient  proof  in  op- 
position to  the  testimony  of  any  or  all  of  the  subscribing  witnesses.* 

§  179.  English  Practice  as  to  producing  the  Subscribing  Wit- 
nesses. 

Tlie  Englisb.  ecclesaastical  courts,  undeir  tihe  system  prevalent  in 
that  country  before  probate  courts  we^re  instituted,  had  no  jui*is- 
diotion  of  wills  affecting  real  estate ;  and  disputes  of  title  under 
soich  wills  were  usually  adjudicated  in  the  common-law  courts  on 
the  issne  of  devisavit  vel  non,  or  else  in  an  action  of  ejectment. 
To  these  courts,  an  equity  tribunal  would  send  an  issue  of  this 
kind  for  trial,  under  its  own  directions ;  anid  one  standing  direc- 
tion was,  that  in  proving  a  will,  the  proponent  should  produce  all 
the  subscribing  witnessejs  at  the  trial,  unless  this  should  be  shown 
impracticable  or  the  opposite  party  waived  the  requirement.^ 

The  general  rule  in  Englisli  courts  at  present,  when  such  issues 
are  tried,  is,  that  the  proponent  of  the  will  must  p-roduce  all  the 

9.  Thornton    v.    Thornton,    39    Vt.  no  special  consideration  on  the  ques- 

122 ;  Martin  v.  Perkins,  56  Miss.  204 ;  tion  of  the  testator's  capacity  by  rea- 

Frear  v.  Williams.  7  Baxt.  550,  556;  son  of  the  mere   fact   that   they   are 

Alexander   v.   Beadle,   7   Coldw.    126;  witnesses.        Crandall's     Appeal,      63 

Garrison   v.   Garrison,    15    N.   J.   Eq.  Conn.   365,   38   Am.  St.  Rep.   375,  28 

266;    Turner    v.    Cheesman,    ib.    243.  A.   531.     See  Chamberlayne  Evid.   §§ 

So  may  the  unfavorable  testimony  of  1923-1927. 

a  sole  surviving  witness  be  overcome  1.  Story  Eq.  Jur.   §   1447 ;    1  Redf. 

on     the     issue     of     undue     influence.  Wills,  34;  Ogle  v.  Cooke,  1  Ves.  Sen. 

Coleman's  Estate,  185  Penn.  St.  437,  177;    Tatham  v.   Wright,   2   Russ.   & 

40  A.  69.     The  testimony  of  subscrib-  My.  1. 
ing  witnesses  to  a  will  is  entitled  to 

205 


§  181  LAW  OF  WILLS.  [pAET  IL 

subscribing  witnesses  available  and  make  tihem  his  witnesse's,  giv- 
ing to  tlie  contestant  'an  opportuJiity  to  cross-examine  tbem.^  But 
under  peculiar  circumstances  the  court  will  dispense  with  this 
necessity,  especially  if  all  the  witnesses  have  been  produced  in 
court  by  the  proponent,  so  that  the  other  party  might  have  called 
the  omitted  witness.^ 

§  180.  Declarations   of    Deceased   or  Absent   Subscribing   Wit- 
nesses Incompetent  as  to  Sanity  or  Insanity. 

The  declarations  of  a  deceased  subscribing  witness,  or  of  one 
beyond  the  jurisdiction,  tending  to  show  that  he  thought  the  tes- 
tator sane  or  insane,  are  ineompeitenti  testimony  on  the  issue  of 
sanity  or  insanity ;  *  for  cross-examination  cannot  be  applied  to 
such  testimony. 

§  181.  How  Witnesses  may  test  Capacity  for  themselves;  they 
should  not  execute  unless  satisfied. 

Dr.  Taylor  lays  down  this  rule  for  testing  the  mental  capacity 
of  a  person  to  do  an  act  requiring  a  sound  and  disposing  mind :  "  If 
a  medical  man  be  present  when  the  will  is  made,  he  may  easily 
satisfy  himself  of  'tihe  state  of  mind  of  the  testatoT  by  requiring 
him  to  repeat  from  memory  the  mode  in  which  he  has  disposed  of 
the  bulk  of  his  property.  Medical  men  have  sometimes  placed 
themselves  in  a  serious  position  by  becoming  witnesses  to  wills 
under  these  circumstances,  without  first  assuring  themselves  of  the 
actual  mental  condition  of  the  testator.  It  would  always  be  a  good 
ground  of  justification,  if,  at  the  request  of  the  witness,  the  tesitator 
had  been  made  to  repeat  substantially  the  leading  provisdons  of  his 

2.  lb.;  Tatliam  v.  Wrifrht.  2  Russ.  visee  scckinj^  to  establish  the  will,  but 
&  My.  1;  Barry  v.  Bntlin,  1  Curt.  by  the  heir-at-law  calling  upon  the 
637;    Keays   v.   M'Donnell,    6   Ir.    Eq.       court  to  declare  it  void. 

Oil.  4.  Baxter    v.    Abbott,    7    Gray,    71; 

3.  Lf)we  V.  .Jolifre,  1  W.  Bl.  365;  St'wall  v.  Robbins,  139  Mas.s.  164; 
Tut  ham  v.  Wright,  supra.  Boardman  v.  Woodman,  47  N.  H.  120; 

In  Tatham  v.  Wright,  the  pe-ul:ar  Tlionipson  v.  Kyner,  65  Penn.  St.  368. 
Hitiiation  of  the  parties  litigant  was  See  Williams  v.  Robinson,  42  Vt.  664, 
that  a   bill   was   filed,  not  by  the  de-       1  Am.  Rep.  359. 

206 


CHAP.  IX.]     PROOF  OF  CAPACITY  AND  INCAPACITY. 


181 


will  from  memory.  If  a  dying  or  sick  peirson  [or  any  other  one] 
cannot  do  'this  without  prompting  or  suggestion,  the-re  is  reason  to 
believe  that  he  has  not  a  sane  and  disposing  mind."  ^ 

This  rule  meets  the  warm  approval  of  so  high  an  American 
authority  as  Judge  RedfieM;^  but  it  must  be  confessed,  that  in 
this  countrv',  at  least,  testators  are  not  disposed  to  submit  to  cate- 
chising from  those  whom  they  may  have  called  in  to  witness  their 
wills,  nor  even  to  state  to  them  confidentially  the  details  of  testa- 
mentary disposition.  The  bystander,  whether  a  medical  man  or 
not,  may  however,  on  his  part,  well  refuse  to  take  the  responsibility 
of  a  subscribing  witness,  where  he  suspcx'ts  that  the  will  is  an 
absurd  or  unjust  one,  or  strongly  doubts  whether  the  testator  him- 
self freely  and  intelligently  executes  it.  Persons  in  these  days  are 
of  too  accommodating  a  disposition  about  lending  their  signaitures 
in  such  a  case  and  then  stultifying  theimselves  at  the  probate,'^  One 


5.  Ray  Med.  Jur.  658. 

6.  1  Redf.  Wills,  95. 

7.  Judge  Redfield  condemns  in  un- 
qualified terms  the  practice,  too  com- 
mon in  the  United  States,  often 
through  a  misapprehension  of  the 
law,  of  heedlessly  witnessing  a  will 
without  regard  to  the  propriety  of 
its  execution  under  the  peculiar  cir- 
cumstances. "  It  seems  to  be  con- 
sidered," he  justly  observes,  "  that 
they  are  only  witnesses  to  the  act  of 
signing.  But  when  it  is  considered 
that  the  witnesses  to  a  will  must  cer- 
tify to  the  capacity  of  the  testator,  as 
well  as  to  the  act  of  execution,  the 
transaction  begins  to  assume  a  some- 
what different  aspect.  One  who  put 
his  name  as  a  witness  to  the  execu- 
tion of  a  will,  while  he  was  conscious 
the  testator  was  not  in  the  posses- 
sion of  his  mental  faculties,  places 
himself  very  much  in  the  same  at- 
titude as  if  he  had  subscribed  as  wit- 
ness to  a  will  which  he  knew  to  be  a 

20 


forgery,  which  every  honorable  man 
could  only  regard  as  becoming  acces- 
sory to  the  crime  by  which  the  will 
was  fabricated."     1  Redf.  Wills,  96. 

That  the  person,  however,  who 
knows  nothing  of  the  contents  of  the 
will  which  he  is  called  upon  to  wit- 
ness, signs  at  a  disadvantage,  and 
might,  when  the  instrument  is  after- 
wards exposed  for  probate,  appreciate 
circumstances  attending  the  act  of 
execution,  while  the  testator  was  fee- 
ble, failing  in  mind,  and  surrounded 
by  advisers  or  interested  parties,  dif- 
ferently from  what  he  did  when  pres- 
ent at  the  execution  and  participat- 
ing in  the  act,  is  obvious.  This  is  a 
peril  to  which  the  testator  may  ex- 
pose the  will  by  his  chosen  secrecy. 
But,  aside  from  such  a  consideration, 
the  witness  who  subscribes  and  then 
discredits  the  instrument  at  the  pro- 
bate, has  seriously  compromised  his 
honor.  And  if  a  professional  man, 
who  fully  comprehends  what  the  law 


§    182  LAW  OF  WILLS.  [pAET    II. 

should  only  subscribe  as  witness  when  he  can  conscientiously  testify- 
without  reserv^e  in  favor  of  the  will  and  its  proper  execution;  and 
it  is  for  the  true  interest  of  every  rational  testatOT  to  procure  wit- 
nesses who  will  stand  resolutely  by  the  trausaction  against  all  in- 
sidious or  open  opposition  to  the  probate. 

§  182.  The  Same  Subject. 

''  ]^o  person,"  says  C'hancellor  Walworth  on  this  point  in  clear 
and  emphatic  language,  "  is  justified  in  putting  his  name,  as  a 
subscribing  witness,  to  a  will,  untess  he  knows  from  the  testator 
himself  that  he  understands  wha.t  he  is  doing.  The  witness  should 
also  be  satisfied,  from  his  own  knowledge  of  the  state  of  the  tes- 
tator's mental  capacity,  that  he  is  of  sound  and  disposing  mind 
and  memory.  By  placing  his  name  to  tihe  instrumenit,  the  witness, 
in  effect,  certifies  to  his  knowledge  of  the  mental  capacity  of  the 
testat-or,  and  that  the  will  was  executed  by  him,  freely  and  under- 
standingly,  with  a  full  knowledge  of  its  contents.  Such  is  the  legal 
effect  of  the  signature  of  the  witness,  when  he  is  dead,  or  is  out  of 
the  jurisdiction  of  the  court."  ^ 

expects  of  his  testimony,   he  cannot  power  of  a  court  of  equity  was  fully 

excuse   a    folly   so    disastrous    in    its  sufficient   to   meet  with   every   fraud 

consequences.  that  could  be  .practiced  in  these  cases, 

8.  Scribner  v.  Crane,  2  Paige,  147.  after    the   contract    was    reduced    to 

See  also  Garrison  v.  Garrison,  15  N.  writing.    But  a  will  was  a  voluntary 

J.  Eq.  266.  disposition,    executed    suddenly     (not 

Lord  Camden  early  pointed  out  unfrequently),  in  tne  last  sickness, 
how  peculiar  a  stress  the  Statute  of  oftentimes  almost  in  the  article  of 
Frauds  had  laid  upon  the  quality  of  death.  And  the  only  question  that 
the  witnesses  to  a  testament  as  dis-  can  be  asked  in  this  case  is.  Was  the 
tinguished  from  those  in  other  tran-  testator  in  his  senses  when  he  made 
sactions.  A  will,  he  observes,  is  the  it?  And  consequently  the  time  of  ex- 
only  instrument  in  this  statute  re-  ecution  is  the  critical  minute  that  re- 
quired to  be  attested  by  subscribing  quires  guard  and  protection.  Here 
witnesses  at  the  time  of  execution.  you  see  the  reason  why  witnesses  are 
"  It  was  enough  for  leases  and  all  called  in  so  emphatically.  What 
other  conveyances  to  be  in  writing.  fraud  aro  they  to  prevent?  Even 
These  were  all  transactions  of  health,  that  fraud  so  commonly  practiced 
and  protected  by  valualjle  considera-  upon  dying  men  whose  hands  have 
tions    and    antecedent    treaties.      The  survived   tlieir  heads;   wlio  have  still 

20S 


CnAP.  IX.]    PEOOF  OF  CAPACITY  AND  INCAPACITY.         §  184 

§  183.  Effect  of  a  Statement  in  the  Attestation  Clause,  vouch- 
ing for  the  Testator's  Sanity. 

Til©  attestation  clause  in  a  will  might  well  be  drawn  so  as  to 
certify  expressly  tLe  belief  of  tbe  subscribing  witnesses  that  the  tes-- 
tator  at  the  time  of  execution  was  of  sound  mind  and  memo^ry.  To 
contradict  under  oath  at  the  trial  such  a  writing  must  greatly  dis- 
credit a  subscribing  witness  unless  he  can  account  for  the  discrep- 
ancy; as  for  instance,  by  showing  that  he  signed  doubtfully  and 
with  little  opportunity  to  judge,  and  that  the  contents  and  char- 
acter of  the  will,  when  exposed  to  view,  convinced  him  to  the  con- 
trary; and  even  thus,  his  honest  opinion  should  carry  very  little 
weight  in  the  case.* 

§  184.  Proponent  goes  forward  and  has  Right  to  open  and  close 
the  Case. 

Since  the  party  setting  up  the  will  has  the  general  burden  to 
esitablish  it,  the  rule  is  that  he  goes  fo^rward  in  the  proof  and  has 
the  opening  and  close  of  the  case;  ^  and  such  is  the  general  practice 
where  sanity  is  at  issue. ^  But  in  Maryland  the  practice  conforms 
to  the  extreme  view  taken  upon  thie  presumption  of  sanity ;  and 
caveators  who  assert  unsoimdnesis  of  mind  are  regarded  as  plain- 

stren^h  enough  to  write  a  name  or  ble   witnesses."      Hindson   v.   Kersey, 

make  a  mark,  though  the  capacity  of  4   Burn  Eccl.  Law,  85,  88.     See  also 

disposing  is  dead.     What  is  the  con-  Tindal,  C.  J.,  in  Tatham  v.  Wright, 

dition  of  such  an  object,  in  the  power  2  Russ.  &  My.  1,  cited  supra,  §  175. 

of  a  few  who  are  suffered  to  attend  9.  See  Garrison  v.  Garrison,  15  N. 

him,  wheedled  or  teased  into  submis-  J.  Eq.  266;  pt.  III.  c.  3,  post. 

sion  for  the  sake  of  a  little  ease?  Put  1.  Supra,  §§  170,  174. 

to  the  laborious  task  of  recollecting  2.  Boardman    v.    Woodman,    47    N". 

the  full  estate  of  all  his  affairs,  and  H.   120;    Robinson  v.  Adams,   62  Me. 

to  weigh  the  just  merits  and  demerits  369;    Brooks  v.  Barrett,   7  Pick.   96; 

of  those  who  belong  to  him,   by   re-  Comstock   v.   Iladlyme,   8   Conn.    261, 

membering   all   and   forgetting   none.  20  Am.  Dec.  100;  Taff  v.  Hosmer,  14 

.     .     .     Who,   then,   shall    secure  the  Mich.  309;  Kempsey  v.  McGinniss,  21 

testator,   in   this   important  moment,  Mich.  123;   Williams  v.  Robinson,  42 

from  imposition?     Who  shall  protect  Vt.    658,    1   Am.   Rep.   359;    Syme   v. 

the  heir-in-law,  and  give  the  world  a  Boughton,  85  N.  C.  367;   Tlieological 

satisfactory    evidence     that     he     was  Seminary  v.  Calhoun,  25  N.  Y.  422; 

sane?     The  statute  says,  three  credi-  1  Bradf.  69,  94. 

14  209 


§    185  LAW  OF  WILLS.  [pART    IL 

tiffs  witJi  the  burden  of  proof  upon  them,  and  they  have  the  right 
to  open  and  cJose.^  The  same  rule  obtains  in  Delaware/  And  in 
some  States  it  is  held  that  on  appeal  from  the  probate  court  in 
such  trials  the  appellant  becomes  the  actor  and  has  the  opening 
and  close  both  in  evidence  and  argument.^ 

§  184a.  Prima  Facie  Case,  how  established. 

Where  tihere  is  no  contest  a  will  may  be  established  by  one  only 
of  the  attesting  witnesses,  if  he  can  testify  to  a  compliance  with 
the  sitatute  regarding  its  execution,  and  upon  the  question  of  sanity 
gives  a  satisfactory  response.  And  in  general,  the  proponents  of 
an  adult's  will  make  a  ynma  facie  case,  where  the  formal  execu- 
tion of  the  vdll  according  to  statute  is  proved,  and  the  two  or  three 
subscribing  witnesses  testify  favorably  upon  the  question  of 
sanity.® 

§  185.  Questions  of  Validity  at  Issue;  Testamentary  Capacity  to 
be  determined  upon  all  the  Evidence. 
But  as  a  general  rule,  wherever  the  issue  is  presented,  whether 
a  certain  document  pi-opounded  is  the  lasit  will  of  the  deceased,  all 
questions  affecting  the  validity  of  the  instrument  may  be  pre- 
sented ; '  and  testamentary  capacity  or  incapacity  becomes  in  the 
main  a  decision  of  fact  upon  all  the  evidence  presented,  and  the 
preponderance  of  the  testimony,  every  material  circumstance  being 
weighed  in  proof.^  A  liberal  discretion  is  allowed  to  the  trial 
judge  in  the  admission  of  s^oh  evidence.^ 

3.  Brooke  V.  Townshend,  7  Gill,  24;  145   Mo.   432,   46    S.    W.    955;    Sling- 
Jones  V.   Collins,   51   A.   398,   94   Md.  lofT  v.  Bruner,  174  111.  561,  51  N.  E. 
40.3:    Leach    v.    Burr.    23    S.    Ct.    393;  772;  §§  173,  174;   143  N.  Y.  S.  433. 
105  Md.  81,  65  A.  918.  7.   Davis  v.  Rogers,   1   Houst.  44. 

4.  (handler  v.  Ferris,  1  Harring.  8.  Gardiner  v.  Gardiner,  34  N.  Y. 
400.  155;    Barber's  Appeal,  63  Conn.   3:)3, 

5.  Rice  (S.  C),  35,  271.  See  Run-  27  A.  793;  Hess  v.  Killebrew,  70  N. 
yon   V.   Price,   15  Ohio  St.  1,  86  Am.  E.  675,  209  111.  193. 

Dec.  459  (appeal  iiniler  llie  local  stat-  Whore  the  will   appears  absurd  or 

ute).  irrational  on  its  face,  and  not  merely 

6.  Sec  I'ulbright   v.   I'erry   County,       harsh,    an    unfavorable    presumption 

210 


CHAP.  IX.]    PROOF  OF  CAPACITY  AND  INCAPACITY. 


ISG 


§  186.  Testamentary  Capacity  at  the  Date  of  the  Transaction 
the  Real  Point  at  Issue. 

Nor  shoiiid  it  be  forgotten  that  tesitamentary  capacity  or  inca- 
pacity at  rtlie  pirecise  date  of  the  transaction  is  the  real  point  ut 
issue.  Hence  the  condition  of  the  testator's  mind  shortly  before 
or  after  executing  the  instrument,  is  only  of  iinpoirtance  so  far  as 
it  establishes  his  mental  condition  ait  the  time  when  the  execution 
actually  occurred.  The  fact  of  a  testator's  subsequent  suicide,  of 
his  sudden  death  from  apoplexy,  or  even  of  an  attack  of  apoplexy 
shortly  before  he  made  his  will,  bears  simply  upon  that  point,  as 
we  have  already  shown. ^^    And  fi-om  the  instances  already  adduced 


arises.  Bradford  v.  Blossom,  105  S. 
W.  289,  207  Mo.  177;  Blackman  v. 
Andrews,  150  Mich.  322,  114  N.  W. 
218.  Of  course,  proof  "beyond  a  rea- 
sonable doubt,"  as  in  criminal  cases, 
has  no  application  here.  34  So.  325, 
82  Miss.  1.  And  see  Beemer  v. 
Beemer,  96  N.  E.  1058,  252  111.  452 
(harsh  and  unequal  distribution  of 
property). 

Where  the  will  was  such  as  might 
naturally  have  been  expected  from  a 
testator  of  such  a  character  and  so 
situated  it  deserves  favor.     See  §  77. 

9.  Guarantee  Trust  Co.  v.  Wal- 
ker, 88  A.  13,  240  Penn.  575. 

Cf.  Sibley  v.  Morse,  109  N. 
W.  858,  146  ]\Iich.  413;  Adams  v. 
Methodist  Church,  96  N.  E.  253,  251 
111.  268;  Hamburger  v.  Rinkel,  64  S. 
W.  104,  164  Mo.  398  (capacity  three 
months  after  executing)  ;  Todd  v. 
Todd,  77  N.  E.  680,  221  111.  410; 
Cullum  v.  Colwell,  83  A.  695,  85 
Conn.  459;  Nichols,  Re,  62  A.  610, 
78  Conn.  429;  Surface  v.  Bentz,  77 
A.  922,  228  Pa.  610;  Wharton's  Will, 
109  N.  W.  492.  132  Iowa,  714;  Spen- 
cer v.  Terry,  94  N.  W.  372,  133  Mich. 


39;  Dudderar  v.  Dudderar,  82  A.  453, 
116  Md.  605;  Ward  v.  Brown,  44  S. 
E.  488,  53  W.  Va.  227;  McCoy  v.  Jor- 
dan, 69  N.  E.  358,  184  Mass.  575; 
Threkeld  v.  Bond,  92  S.  W.  606,  29  Ky. 
Law,  177;  Buckman's  Will,  85  A.  246, 
80  N.  J.  Eq.  556;  Taylor  v.  Taylor, 
93  N.  E.  9,  174  Ind.  670  (five  years 
later)  ;  Wilkinson  v.  Service,  94  N. 
E.  50,  249  111.  146;  Walker's  Will, 
152  Iowa,  154.  128  N.  W.  386. 

All  irrelevant  testimony  shou'd  be 
excluded  and  the  discretion  of  the 
judge  should  largely  control  as  to  the 
relevancy  of  such  testimony.  ^Ic- 
Coy  V.  Jordan,  supra;  127  Penn.  St. 
564,  18  A.  432. 

9a.  Supra,  §§  119,  120.  See  Lewis's 
Will.  51  Wis.  101,  7  N.  W.  829, 
where  the  will  of  one  who  had  an 
epileptic  fit  shortly  before  and  shortly 
after  executing  it  was  sustained;  also 
Brown  v.  Riggin,  94  111.  560;  77  N. 
Y.  S.  663.  As  to  suicide,  see  Burrows 
V.  Burrows,  1  Hagg.  109;  2  Curt.  415; 
Elwee  V.  Ferguson,  43  Mo.  479;  Duf- 
field  V.  Morris,  2  Harring.  375;  God- 
den  V.  Burke,  35  La.  An.  160;  Brooks 
V.  Barrett,  7  Pick.  94.  Hence  mental 
condition   on   the   day   before   or   the 


211 


§  187 


LAW  OF   WILLS. 


[part   H. 


one  may  gather  how  strong,  on  the  whole,  should  be  ith.e  proof  of  a 
testator's  insanity  in  ordeir  to  invalidate  the  instrument  offered  as 
his  last  will  and  testament.^ 

§  187.  Various  Matters  of  Proof  bearing  upon  this  Issue;  In- 
sanity once  shown,  presumed  to  continue,  etc. 
When  the  habit  of  general  insanity  is  onioe  s-hown  to  have  ex- 
isted not  very  long  before  the  execution  of  the  will  in  question,  it 
will  be  &o  far  presumed  to  have  continued  tO'  the  date  of  execution 
that  the  proponent  must  ove'rcome  this  unfavoirable  presumption 
before  the  will  he  offers  can  be  established.^  So,  too,  does  proof 
that  the  testator  was  under  guardianship  for  insanity  much  dis- 
credit his  will.^  But  all  unfavorable  presumptions  of  this  kind, 
whether  stronger  or  weaker,  may  be  removed  by  appropriate  tes- 
timony ;  *  and  it  is  sufficient  for  the  proponent  to  show  that  suoh 
insanity  had  ceased  to  exist  when  the  will  was  executed,  or  that 

w 
lucid  interv^al  o^r  respite  from  the  malady.^ 


it  never  existed  at  all,  or  that  the  will  was  made  during  some 


day  after  making  a  will  is  admissible 
to  show  mental  condition  on  the  day 
of  making  the  will.  Dyer  v.  Dyer,  87 
Ind.  13. 

1.  For  instances  of  evidence, 
whether  seasonable  or  too  remote  in 
point  of  time,  cf.  De  Laveaga's  Es- 
tate, 133  P.  307,  165  Cal.  607;  Brain- 
ard  V.  Brainard,  103  N.  E.  45,  259 
111.  613;  Smith's  Will,  79  S.  E.  977, 
103  X.  C.  464. 

2.  Smith  V.  Smith,  4  Baxt.  293; 
Harrison  v.  Rowan,  3  Wash.  C.  C. 
586;  Swinb.  Wills,  pt.  2,  §  3;  1  Hall 
P.  C.  30;  Townshend  v.  Townshend,  7 
Gill,  10.  "No  position  can  be  bet- 
ter established  than  that,  if  a  testa- 
tor, a  .short  time  before  m.iking  his 
will,  be  proved  to  have  been  of  un- 
Bound  mind,  it  throws  the  burden  of 
proof  upon  those  who  come  to  sup- 
port the  will  to  sliow  the  restoration 


of  his  sanity.  This  must  be  under- 
stood to  mean  a  general  and  fixed  in- 
sanity." Halley  v.  W'ebster,  21  Me. 
461,  by  Whitman,  C.  J.  And  see 
Hoopes's  Estate,  174  Penn.  St.  373, 
34  A.  603;  Bradford  v.  Blossom,  207 
Mo.  177,  105  S.  W.  289;  Morere's 
Succession,  38  So.  435,  111  La.  506; 
Gesell  v.  Baugher,  60  A.  481,  100  Md. 
677. 

3.  Supra,  §§  81,  82;  Little  v.  Lit- 
tle, 13  Gray,  264.  So  as  to  an  inqui- 
sition of  lunacy.  Bidder  v.  Miller, 
86  N.  Y.  507;  Stevens  v.  Stevens,  127 
Ind.  560,  26  N.  E.  1078. 

4.  Supra,  §§  81,  82;  Rice  v.  Rice, 
50  Mich.  448,  15  N.  W.  545. 

5.  Curtwiight  v.  Cartwright,  1 
Phillim.  100;  Boyd  v.  Eby,  8  Watts, 
66;  Jackson  v.  Van  Dusen,  5  Johns. 
144;  Goble  V.  Grant,  2  Green  Oh. 
029;  supra,  §§  72,  88,  107, 


212 


CHAP.  IX.]     PKOOF  OF  CAPACITY  AND  INCAPACITY.         §  188 

If,  however,  the  insanity  shown  were  something  of  a  temporary 
nature,  such  as  might  be  produced  by  fever,  by  a  passing  delirium, 
by  some  accident,  and  not  a  fixed  and  habitual  derangement,  no 
strong  p'resumption,  and  in  many  oasics  no  piresiunption  at  all, 
would  operate  to  disturb  that  prima  facie  case  which  tlie  due  ex- 
ecution of  a  rational  will,  by  one  apparently  rational,  makes  out.® 
The  earlier  the  date  of  the  alleged  insanity,  as  shown,  against  the 
will,  the  less  conclusive  must,  of  course,  be  ithe  force  of  such  tes- 
timony; ^  and  since  incapacity  just  when  the  vnll  was  made  is  the 
true  issue,  proof  that  the  testator  was  insane  years  after  its  execu- 
tion is  of  very  trivial  consequence.^ 

There  is,  therefore,  no  such  unqualified  presumption  of  law  as 
"  once  insane,  -always  insane  " ;  but  the  peculiar  circumstances 
connected  with  the  malady  of  the  individual  testator  must  be  con- 
sidered in  deciding  its  effect  upon  the  burden  of  proof,  o>v  deter- 
mining how  far  the  same  condition  of  mind  may  be  inferred  at  any 
later  or  earlier  period.^ 

§  188.  The  Same  Subject:    Proof  of  General  Insanity. 

As  we  have  already  seen,  the  character  of  the  will  itself,  whether 
natural  or  unnatural,  reasonable  or  absurd,  just  or  unjust,  bears 
strongly  upon  the  issue  of  general  insanity,  and  the  more  so  when 
its  provisions  show  a  radical  and  unaccountable  change  from  the 
testator's  normal  purpose.  Yet  we  have  also  seen  that  one  may 
capriciously  change  his  purpose,  and  that  a  will  which  disposes 
harshly,  foolishly,  or  unequally,  is  not  to  be  set  aside  for  that  cause 
if  the  testator  were  really  sane  when  he  made  it.-^     We  have  seen 

6.  Lord  Eldon  in  Holyland,  Ex  8.  Taylor  v.  Cresswell,  45  Md.  422. 
parte,  11  Ves.  11;  Hix  v.  Whittemore,  9.  See  Dewey,  J.,  in  Hix  v.  Whit- 
4  Met.  545;  Staples  v.  Wellington,  temore,  4  Met.  545;  Taylor  v.  Peg- 
58    Me.    453;    Halley   v.   Webster,   21  ram,  151  111.  106,  37  N.  E.  837. 

Me.    461;     McMasters    v.    Blair,    29  1.  Supra,   §§    77,   112;    Coleman   v. 

Penn.  St.  298;   Townshend  v.  Towns-  Robertson,    17    Ala.    84;     Stubbs    v. 

bend,  7  Gill,  10.     And  see  supra,  §§  Houston,  33  Ala.  555;  Goble  v.  Grant, 

122,  127.  2  Green  Ch.  629;   Ross  v.  Christmas, 

7.  Hix  V.  Whittemore,  and  Halley  i  Ired.  209;  Graham  v.  Deut«rman, 
V.  Webster,  supra.  69  N.  E.  237,  206  111.  378;  Perkins  v 

213 


§    1S8  ■  LAW  OF  WILLS.  [pART    II. 

that,  in  connection  with  the  contents  and  character  of  the  will  it- 
self, the  manner  in  which  it  was  written  and  executed  may  aid 
in  establishing  sanity  or  insanity.  Thus,  where  -the  will  was  writ- 
ten out  entirely  by  the  testator's  own  hand,  this  fact,  bears  greatly 
in  its  favor.^  Yet  wills  clearly  expressed  in  the  testator's  own 
handwriting  have  been  seit  aside  on  proof  of  his  insanity.^  We 
have  seen  that  a  testator  may  be  irritable  in  temper,  morose,  pro- 
fane, miserly,  squalid,  disihonest,  devoid  of  affection,  proud,  sel- 
fish, and  yet,  being  sane,  his  will  cannot  be  impeached  :*  at  the 
same  time  tbat  all  such  manifestations,  at  and  about  the  time  of  the 
testamentary  act,  may,  especially  if  indicating  a  sudden  perver- 
sion of  the  mind  from  its  natural  chiannel,  be  shown  in  connection 
with  other  facts,  as  tending  to  prove  insanity.^  We  have  seen  that 
mere  eccentricity  is  not  insanity ;  and  yet  eccentric  freaks  may  be 
a  symptom  of  insanity.^  We  have  seen  that  one  may  make  a  valid 
will  who  does  not  manage  his  business  affairs ;  and  yet  incapacity 
to  manage  one's  affairs  is  a  circumstance  for  consideration.^  We 
have  seen,  in  fine,  that  the  intellect  may  flare  wildly  or  bum  low 
iD  the  socket;  and  yet  that  a  testator  has  sufiicient  mental  capacity 
to  make  a  will  when  he  uiulei'stands  fully  and  in  detail,  without 
prompting,  what  he  is  doing  and  how  he  is  to  do  it,  what  is  his 
property  and  how  lie  wishes  to  dispose  of  that  property  among 
those  naturally  entitled  to  his  bounty ;  or  in  other  words,  so  long  as 

Perkins,  90  N.  W.  55,  116  Iowa,  253;  3.  See  Symes  v.  Green,  1  Sw.  &  Tr. 

Baker  v.  Lewis,  4  Rawle,  356;   Mun-  401;   1  Phillim.  90. 

day   V.   Taylor,    7   Bush.   491;    Whit-  4.  Supra,  §§  77,  158;  Lewis,  Re,  33 

man  v.  Morey,  63  N.  H.  448,  138  Mo.  N.  J.  Eq.  219;  Coleman  v.  Robertson, 

197.  17  Ala.  84;   Nicholas  v.  Kcrshner,  20 

One    may    diapose    according    to    a  W.  Va-  251. 

rational     purpose     of     his     own,     al-  5.  Conely    v.    McDonald,    40    Mich. 

thouj,'h     such    purpose    may     appear  150. 

irrational   to  others.     62   S.   W.   890,  6.  Supra,    §    152.      See    Bristod    v. 

35  N.  W.   159.  Weeks,  5  Redf.    (N.  Y.)    529;   Jacob's 

2.  Supra,    §     113;      Cartwright     v.  Succession,    34    So.    59,    109    La.    Ann. 

C'artwright,  1  Pliillim.  90;   Temple  v.  1012. 

Temple,  1  Hen.  &  M.  476;  Ovcrtun  v.  7.  Supra,  §  70;  Errickson  v.  Fields, 

Overton,  18  B.  Mon.  61.  30  N.  J.  Eq.  634. 

214 


CHAP.  IX.]    PROOF  OF  CAPACITY  AND  INCAPACITY. 


§   188 


lie  has  suificieut  intelligence  to  understand  and  appreciate  the  tes- 
tamentary act  in  its  different  'boaxin^s,  and  no  longer." 


8.  Supra,  §§  70,  71;  Banks  v.  Good- 
fellow,  L.  R.  5  Q.  B.  567;  Delafield 
V.  Parish,  25  N.  Y.  10;  42  Barb.  274. 

The  circumstances  in  the  Parish 
Will  Case  (42  Barb.  274;  affirmed, 
25  N.  Y.  10)  are  worth  observing; 
that  case  being  a  remarkable  one,  as 
putting  a  practical  limit  to  testa- 
mentary capacity  which  Americ\n 
courts  have  not  since  been  disposed 
to  transgress,  though  some  had  trans- 
gressed it  before.  The  litigation 
came  prominently  before  the  public 
in  1857-1862;  the  Supreme  Court  of 
New  York,  on  appeal  from  the  Sur- 
rogate, rejecting  three  alleged  codicils 
to  the  will  of  Mr.  Parish,  and  the 
court  of  appeals  affirming  substan- 
tially the  decision.  Henry  Parish,  a 
man  of  good  mental  and  moral  per- 
ceptions, refined  and  gentle  suscepti- 
bilities, made  his  will  in  1842.  In 
1849  (having,  it  appears,  some  here- 
ditary tendency  to  mental  disorder) 
he  was  suddenly  struck  with  a  severe 
apoplexy,  which  was  followed  by  per- 
manent paralysis  or  hemiplegia  on , 
the  right  side,  and  by  severe  epileptic 
convulsions  which  continued  until  his 
death  in  1856.  After  the  attack,  he 
ceased  to  be  the  mild,  intelligent,  and 
unruffled  man  he  was  before,  fre- 
quently exhibited  ungentlemanly  and 
unbecoming  conduct,  and  underwent 
a  decided  mental  change.  From  1849 
to  the  date  of  his  death  he  had  vari- 
ous painful  diseases,  such  as  cholera 
morbus,  inflammation  of  the  lungs, 
and  the  formation  of  an  abscess  un- 
der the  jaw  which  threatened  to  suf- 
focate him.  He  would  suffer  spasms 
or   convulsions    at   regular    intervals, 


extending  from  one  or  two  weeks  to 
six  months  or  a  year.  During  this 
whole  period  of  intermittent  agony, 
the  suflferer  could  neither  write  nor 
speak,  nor  use  language  in  any  shape 
or  form  for  the  expression  of  his 
mind.  He  could  see,  he  could  use  his 
left  arm,  hand,  and  fingers,  vigor- 
ously, but  he  could  not  or  would  not 
write.  He  did  not  use  the  dictionary 
for  pointing  to  words,  and  when 
block-letters  were  placed  before  him, 
he  pushed  them  away;  symptoms 
pointing  to  a  diseased  state  of  mind. 
Expressing  himself  by  signs,  gestures, 
and  motions,  those  signs,  gestures, 
and  motions  were  often  contradictory, 
uncertain,  frequently  misunderstood, 
often  not  comprehenled  at  all.  His 
nurses  would  read  the  newspaper  to 
him,  but  it  did  not  appear  that  he 
comprehended  what  was  read,  or  ex- 
hibited any  intelligent  interest  in  the 
reading.  After  the  first  attack  he 
was  never  intrusted  with  money  or 
the  management  of  his  own  affairs, 
and  was  washed,  dressed,  and  attend- 
ed like  a  helpless  child.  He  showed 
strange  freaks  and  caprices,  and  had 
to  be  guarded  from  heedless  exposure 
to  danger. 

Not  making  it  easily  understood 
what  he  wished,  any  will  he  might 
make,  even  supposing  him  rational  in 
making  it,  would  necessarily  depend 
iupon  the  interpreter  and  the  integ- 
rity of  the  interpretation.  But  as  to 
the  three  codicils  offered  for  probate, 
it  seems  that  the  counsel  employed  by 
the  family  to  .prepare  them,  read 
them  to  Mr.  Parish  in  the  presence 
of  the  subscribing   witnesses,   put   to 


215 


189 


LAW  OF  WILLS. 


[part  ir. 


§  189.  The  Same  Subject:  Proof  of  Lucid  Interval  or  Restora- 
tion. 
Thie  presumption  being  itbat  general  insanity  once  shown  to  ex- 
ist still  continues,  unless  of  a  temporary  sort,  like  the  delirium  of 
dininkenness  or  a  fever,  the  burden  of  proof  to  establish  a  lucid 
interval  or  memtal  restoTation  rests  upon  the  party  who  asserts  it.* 
One  who  offers  the  will  of  a  testator  shown  thus  incapable  should 
prove,  therefore,  that  the  incapacity  was,  at  least,  so  far  removed 
when  tlie  instrument  was  execut-ed  that  his  reason  shone  out  once 
more  in  the  transaction.^    The  nature  and  character  of  the  will  and 


him  the  requisite  formal  questions, 
and  received  from  him  by  sound  and 
gesture,  as  usual,  what  were  sup- 
posed to  be  affirmative  replies.  The 
counsel  then  guided  the  hand  of  Mr. 
Parish  while  he  made  his  mark.  This, 
at  least,  was  the  case  when  the  first 
and  second  codicils  were  executed; 
whether  or  not  lie  recived  assistance 
in  making  his  mark  at  the  execution 
of  the  third  was  not  clear.  These 
codicils  were  drawn  under  the  sug- 
gestion of  Mr.  Parish's  wife,  whose 
share  in  the  estate  was  immensely 
increased  by  them. 

The  Surrogate  admitted  the  first 
codicil  to  probate,  rejecting  the  sec- 
ond and  third;  but  under  the  decree 
of  the  Supreme  Court,  which  was 
affirmed  on  final  appeal,  all  the  three 
codicils  were  rejected. 

We  have  already  shown  that  the 
rule  prescribing  a  test  of  capacity  for 
making  wills  is  here  narrowed  mater- 
ially from  that  in  Stewart  v.  Lispen- 
ard,  26  Wend.  255,  which  had  hither- 
to been  the  leading  precedent  for  New 
York,  if  not  most  other  States,  on 
the  subject.  In  that  case  what  were 
supposed  the  last  wishes  of  a  testa- 
trix, low,  too  low,  in  point  of  capac- 


ity, were  respected.  Here  they  were 
set  summarily  aside.  But  the  dis- 
crepancy upon  the  decided  facts  is  not 
so  great  after  all;  for  in  the  Parish 
Will  Case,  codicils  unjust  in  terms 
and  likely  to  have  been  unfairly  pro- 
cured were  swept  aside  in  favor  of  a 
disposition  unquestionably  rational; 
while  in  Stewart  v.  Lispenard,  the 
disposition  was  just  and  reasonable, 
and  accorded  with  the  earlier  inten- 
tions of  the  deceased;  a  further  proof, 
in  connection  with  the  instances  else- 
where cited,  that  in  the  mind  of  court, 
jury,  and  the  general  public,  the  dis- 
position to  uphold  officious  and  con- 
demn inofficious  wills  is  too  strong 
for  logical  consistency  to  restrain  it. 

9.  Cartwright  v.  Cartwright,  1 
Phillim.  100;  White  v.  Driver,  1  Phil- 
lim.  88;  supra,  §§  110,  122;  1  Wms. 
Exr«.  22;  Gombault  v.  Public  Admr., 
4  Bradf.  (N.  Y.)  226;  Saxon  v.  Whit- 
aker,  30  Ala.  237;  Halley  v.  Web- 
ster, 21  Me.  461;  Lucas  v.  Parsons, 
27  Geo.  593 ;  Harden  v.  Hays,  9  Penn. 
St.  151;  Goble  v.  Grant,  2  Green  Ch. 
629;  Jackson  v.  Van  Dusen,  5  Johns. 
144;  Harden  v.  Hays,  9  Penn.  St- 
151;  44  N.  J.  Eq.  154,  15  A.  391. 

1.  lb. 


216 


C'liAP.  IX.]     PROOF  OF  CAPACITY  AND  INCAPACITY.         §  190 

the  circum stances  atjtiending  its  execution  may  aid  such  an  infor- 
ence;  but  while  no  precise  measure  of  proof  is  set  by  the  law,  there 
must  be  sufficient  io  overcome  that  unfavorable  impression  which, 
is  naturally  produced  when  habitual  insanity  has  been  shown  to 
have  once  exiated."  Lucid  intervals  involve  too  slight  and  waver- 
ing a  'departure  from  confinned  derangement  of  the  intellect  to 
serve  as  a  yeiry  posiitive  basis  for  testamentary  capacity  to  rest 
upon;  while  proof  tbat  the  testator  had  actually  recovered  his  full 
mental  health  afteir  the  period  of  incapacity  and  before  the  will  was 
made,  well  overcomes  any  presumpition  of  insanity  f  and  yet  it 
should  'be  still  observed  that  those  once  confirmed  in  this  malady, 
however  resitored  they  may  appear,  are  liable  to  a  relapse  when 
some  new  calamity  comes  with  crushing  weight  or  the  faculties. 
decay  in  the  torpor  of  declining  years. 

§  190.  The  Same  Subject :    Proof  of  Monomania  or  Insane  De- 
lusion. 

Where  only  partial  insanity,  or  rather  monomania,  is  shown  at 
the  trial  insitead  of  general  insanity,  the  burden  of  overcoming  this 
proof  and  of  establishing  testamentary  capacity  is  certainly  not 
so  great,  if  we  may  trust  the  prepondeiranoe  of  later  English  and 
American  authority.  For  here,  as  we  have  shown,  the  will  ougbt 
to  stand  unless  the  delusion,  ithe  monomania,  colored,  so  to  speak, 
the  testamentary  transaction,  and  made  its  particular  disposition 
in  effect  the  product  of  a  deranged  mind.*  It  is  true  tbat  the 
mental  disorder  in  questtion  miay  have  extended  beyond  its  outward 
and  visible  symptom ;  and  that  the  insane  delusion  once  shown  to 
exist,  a  prejudice  is  created  against  the  will.  But  the  most  decisive 
circumstance  against  the  will,  in  such  a  situation,  would  be  that  it 
was  unnatural,  inofficious,  insane  in  character,  tinctured  by  the 
delusion  to  the  injury  of  survivors.    For  if,  on  tlhe  other  hand,  the 

2.  Brogden  v.  Brown,  2  Add.  445;  212;    Duffield   v.   Morris,   2   Harring. 

supra,  §§  110,  111;  Steed  v.  Galley,  1  375. 

Keen,      620;      Gombault     v.     Public  3.  See  Snow  v.  Benton,  28  111.  306„. 

Admr.,  4  Bradf.  226;  Snow  v.  Benton,  4.  Supra,    §    159. 
28  111.  306;   Wright  v.  Lewis,  5  Rich. 

217 


§    192  LAW  OF   WILLS.  [i'ART    II. 

jurj  or  court  trying  the  issue  of  capacity  should  feel  satisfied  that 
the  delusion  had  not  affected  the  testator's  general  faculties  nor 
pen'ert€>d  ithe  particular  disposition  by  tes'tament,  there  is  no  rea- 
son why  the  will  should  not  be  upheld.^  The  burden  of  proving 
capacity  requires  those  who  propound  the  will,  at  all  events,  to 
overcome  whateveir  tends  to  prove  ihat  the  delusion  and  the  testa- 
menitary  disposition  were  connected.® 

§  191.  Proof  of  Drunkenness,  etc. 

The  finding  of  an  inquesit  that  a  person  is  an  habitual  drunkard 
can  be,  at  the  utmost,  no  more  than  prima  facie  evidence  of  in- 
capacity.^ And  proof  of  intemperate  habits  and  occasional  fits  of 
wildness,  though  indicating  an  impaired  mind,  is  not  sufficient  to 
establish  a  total  and  penuanent  want  of  tesitamentary  powefr.*  In- 
deed, proof  of  instances  of  longer  oir  shorter  incapacity  from  drunk- 
enness should  not  destroy  the  usual  presumption  of  general 
capacity  from  the  proper  execution,  but  the  party  alleging  inca- 
pacity should  bring  his  proof  to  bear  more  directly  upon  the  time 
cf  execution.' 

§  192.  Personal  History  of  Testator  in  an  issue  of  Insanity,  Au- 
topsy, etc. 

The  whole  personal  history  of  the  testator,  mental  and   physical, 

5.  See    observations    of    Cockburn.       A.  620,  93  Md.  442,  as  to  proof  of  the 
C.  J.,  in  Banks  v.  Goodfellow,   L.  R.       testator's    religious    vacillation. 

.5    Q.    B.    549;    supra,    §s    157,    160;  7.  Leckey  v.  Cunningham,  56  Penn. 

Fraser  v.   Jennison.  43  Mich.  206.    See  St.  370;   Lewis  v.  Jones    (N.  Y.),  50 

also  Mullins  V.  Cottrell,  41  Miss.  291;  Barb.   645. 

Wetter    v.    Habersham,    60    Ga.    193;  8.  Julke    v.    Adam,    1    Redf.    454; 

Hall  V.  Hall,  38  Ala.  131;  Jenckes  v.  Duffiold   v.    Morris,    2   Harring.    375; 

Smithfield   2  R.  I.  255.  Peck   v.   Gary,   27  N.  Y.   9,   84      Am. 

6.  Smee  v.   Smee,  5.   P.  D.  84.  Dec.  220;   Svvygart  v.  Willard,  76  N. 
In    ca.ses    of    alleged    spiritualism,  E.  755,  166  Ind.  25. 

etc.,  evidence  of  the  truth  or  falsity  9.  Black   v.   Ellis,   3   Hill    (S.   C. ), 

of   the   faith    is    inadmissible.     O'Dell  68,   184  Penn.  St.  41,   39  A.  16;   An- 

v.  GofT,  149  Mich.  152,  112  N.  W.  736,  dress  v.  Weller,  3  N.  J.  Eq.  604.    And 

10  L.   11.  A.   IN.  S.)   989,  119  Am.  St.  see    supra.    §§    125-128;    Elkinton    v. 

Rep.   662;    §§   166-168  supra.     See  49  Brick,  44  N.  J.  Eq.  154,  15  A.  391. 

218 


<-'IlAP.  IX.]     PKOOF  OF  CAPACITY  AND  INCAPACITY.         §  193 

may  be  freely  ranged  over  upon  the  issue  of  liis  insanity.^  And  as 
insanity  is  often  heredit;ary  and  the  taint  transmittod  through 
one's  ancestors,  it  is  not  considered  iraperintent  to  inquire  into  the 
sanity  of  his  immediate  progenitors  oir  otheirs  oif  the  family  not 
remote.^  The  value  of  this  latter  evidence  appears  to  depend  upon 
its  immediate  connection  with  the  testator's  O'wn  condition,  as 
shown  'by  medical  exporttis ;  ^  and  where  the  malady  cannot  be  traced 
directly  in  the  blood,  but  the  ancestor  was  collateral  or  remote,  or 
his  mental  disorder  by  no  means  coincident  with  that  of  the  tcs- 
tatoir,  such  proof  can  be  of  very  slight  consequence. 

While  the  diseased  condition  of  the  tesitiator's  body  as  shown  by 
an  autopsy  may  corroborate  the  proof  of  mental  derangement 
deduced  from  manifestations  during  life,  this  should  no-t  be  relied 
upon  for  furnishing  the  sole  or  even  the  primary  evidence  of  the 
■decedenit's  meoatal  condition.* 


§  193.  Declarations,  Letters,  etc.,  of  Testator,  how  far  Admis- 
sible as  to  Mental  Capacity. 
Upon  the  question  of  mental  capacity  to  make  a  will,  declara- 
tions of  the  testator  made  at  or  about  the  time  of  its  execution,  and 
his  conduct,  are  admissable  as  part  of  the  res  gestae.^     But  his 


1.  Ross  V.  McQuiston,  45  Iowa,  145 
Sliailer  v.  Bumstead,  99  Mass.  119 
Wright  V.  Tatham,  5  CI.  &  F.  670 
Dale's  Appeal,  57  Conn.  127;  Bevei 
V.   Spangler,  93  Iowa,  576,  61  N.  W 


96  Md.  45;   Pringle  v.  Burroughs,  78 
N.  E.  150,  185  N.  Y.  375. 

4.  LaBau    v.    Vanderbilt,    3    ReJf. 
(N.  Y.)    384. 

5.  Marx  v.  McGlynn,  4  Redf.  455; 


1072.     If  one  side  takes  a  wide  range,  May  v.  Bradlee,  127  Mass.  414;   Bny- 

at  the  trial,   still   more   readily  may  Ian  v.  Meeker,  28  N.  J.  L.  274;   Col- 

the  other.     176  111.  448.    But  see  51  A-  vin  v.  Warford,  20  Md.  357;   McTag- 

398,  94  Md.  403.  gart  v.  Thompson,  14  Penn.  St.   149; 

2.  Baxter  v.  Abbott,  7  Gray,  71;  Gibson  v.  Gibson,  30  Mo.  227,  64  Am. 
Snow  V.  Benton,  28  111.  306.  Dec.  178 ;  Dickie  v.  Carter,  42  111.  376 ; 

3.  1  Jarm.  38,  Am.  Ed  ;  Eraser  v.  47  Conn.  450,  Bever  v.  Spangler,  93 
Jennison,  42  Mich.  206.  Irrelevant  Iowa,  576,  61  N.  W.  1072;  Heseman 
evidence  is  not  on  such  points  ad-  v.  Vogt,  55  N.  E.  151,  181  111.  400; 
niissible.  127  Penn.  St.  564,  18  A.  Dudderar  v.  Dudderar,  82  A.  453,  116 
432;    Berry  v.  Trust  Co.,   53  A.   7?0.  Md.  605. 

219 


§    193  LAW  OF  WILLS.  [pAET    II. 

declarations  made  long  after  tiie  will  was  executed,  as,  for  instance,, 
two  years,  are  too  remote  in  time  to  be  admissible  on  this  point ;  ^ 
and  so  are  bis  declarations  made  long  before  the  execution.^  To 
letters  or  other  writings  of  the  decedent  a  like  principle  applies. 
Such  testimony  cannot  be  strained  to  a  remote  purpose ;  ^  and  yet 
clear,  sensible,  and  perfectly  coherent  letters  written  by  the  tes- 
tator shortly  before  and  after  making  the  will  should  bear  strongly 
in  favor  of  his  general  capacity,  if  such  capacity  b©  at  issue.^  And 
so  may  his  business  papers,  at  ot  about  the  time  of  executing  the 
will,  be  produced  in  evidence.^ 

Not  only  as  part  of  the  transaction  are  the  declarations,  oral  or 
written,  of  the  alleged  testator,  thus  admissible  upon  an  issue  of 
devisavit  vel  non  (*'  will  or  no  will  "),  but  they  may  be  received 
when  the  condition  of  he  testator's  mind  is  the  point  of  contention, 
or  it  becomes  material  to  show  the  state  of  his  affections.  Thus^ 
the  feelings  of  a  testator  towards  a  relative  or  relatives  whom  he 
practically  disinherits  can  be  shouTi  in  proof.^  In  all  such  cases^ 
the  evidence  is  properly  admitted  simply  as  external  manifesta- 
tions of  a  testator's  mental  condition  and  disposition,  and  not  as 
evidence  of  the  truth  or  falsity  of  the  facts  he  stAtes.^  For  as  with 
deeds,  so  with  wills,  the  parties  making  them  cannot  impeach  them 
by  their  own  parol  decLarationiSi,  prior  or  subsequent  to  the  execu- 
tion ;  and  evidence  thereof  is  not  admissible  upon  the  issue  of  val- 

6.  La  Bau  v.  Vanderbilt,  3  Redf.  can  be  shown.  Wright  v.  Tatham,  5 
384;  Fraser  v.  Jennison,  42  Mich.  206.      CI.  &  F.  670,  7  A.  &  E.  313.     See  Mc- 

7.  Cf.   Langford's   Estate,   108   Cal.      Ninoh  v.  Charles,  2  Rich.  229. 

608,  41  P.  701;   Bower  v.  Bower,  142  1.  Messner    v.    Elliott,     184     Penn. 

Ind.  194,  41  N.  E.  523.  St.  41,  39  A.  46. 

8.  Fraser  v.   Jennison,  supra.  2.  Wliitman    v.    Morey,    63    N.    H. 

9.  Blakely's  Will,  48  Wis.  294.  448;  Haines  v.  Hayden,  95  Mich.  332. 
Wheelock's  Will,  56  A.  1013,  76  Vt.  The  fact  that  the  testator  held 
235;  Baker  v.  Baker,  67  N.  E.  410,  certain  ofiices  after  making  a  will 
202  111.  595.  Letters  written  to  a  is  not  admissible  to  show  his  com- 
testator,  and  traced  to  his  possession,  peteney,  without  further  proof  of  how 
afford  of  themselves  no  proof  of  his  ca-  he  discharged  the  duties.  Ray  v.  Ray, 
pacity  unless  knowledge  or  act  of  the  98  N.  C.  566,  4  S.  E.  596. 
testator  with   regard  to  those  letters 

220 


•CHAP.    IX.]  I'KOOF  OF  CAPACITY  AND  INCAPACITY.  §    194 

idity.^  By  making  a  new  instrument  or  revoking  the  old  one,  the 
power  to  invalidate  is  properly  exercised  if  mental  capacity  re- 
mains to  a  testator. 

It  is  obvious  that  if  one  cannot  lawfully  revoke  a  former  will 
because  of  his  present  insanity,  his  insane  declaration  as  to  fo'rmer 
mental  condition  should  be  utterly  wortliless  as  testimony  of  the 
fact  to  impeach  it.  But  mental  disturbance  may  be  detected  by 
•declarations  as  surely  as  by  conduct;  and  bence  the  declarations 
of  persons  charged  with  insanity  aire  admissible,  in  a  chain  of 
logical  connection,  to  elucidate  the  mental  condition  existing  when 
the  will  in  question  wns  executed.  But  if  they  have  no  tendency 
to  show  contemporaneous  capacity  or  incapacity,  they  are  inad- 
missible ;  and  hence  the  subsequent  declarations  of  a  testator,  made 
while  of  sound  mind,  are  held  incompetent  to  sbow  his  mental 
condition  lat  the  date  of  execution.^ 

§  194.  Miscellaneous  Points  as  to  Evidence  in  Such  Cases. 

Rumors  among  a  tesitator's  neighbors',  or  general  reputation  as 
to  whether  he  was  of  unsound  mind  or  not,  are  inadmissible  proof 
in  the  present  connection.®    And  generally  on  an  issue  of  devisavit 

3.  This  seems  the  general  doctrine,  N    W.  468,  123  Iowa  24;  136  N.  Y.  S. 

although   the  cases   are  somewhat   in  1086;  Chevallier's  Estate,  113  P.  130, 

conflict  upon  this  point.     See  Gibson  159   Oal.   161;    Wilkinson   v.   Service, 

V.   Gibson,   20  Mo.    227,   and   author-  94  N.   E.   50,   249   111.   146;    Gicks   v. 

ities    cited;     Jackson    v.    Kniflfen,    2  Stumpf,  97  N.  E.  865,  204  N.  Y.  413; 

Johns.   31;    Provis.   v.   Reed,   5   Bing.  Dudderar  v.  Dudderar,  82  A.  453,  116 

435 ;  Moritz  V.  Brough,  16  S.  &  R.  405 ;  Md.    605     (not    to    show,    as    a    fact, 

Canada's   Appeal,   47   Conn.   450;    84  whether    or    how    he    had    made    his 

Mo.  587;   Roche  v.  Nason,  185  N.  Y.  will). 

128,  77  N.  E.  1007   (not  favored)  ;  95  4.  Gibson  v.  Gibson,  sujrra;  Dickie 

S.    W.    189,    117    Tenn.    73;    Credille  v.  Carter,  42  111.  376. 

V.  Credille,  51  S.  E.  628,  123  Ga.  673,  5.  Crocker  v.  Chase,  68  A.  756,  57 

107   Am.    St.   B.esp.    157;    Swrgart   v.  Vt.  413. 

Willard,   76  N.  E.   755,   166   Ind.   25,  See  next  chapter  §  243,  as  to  aeciar- 

60  N.  E.  223,  167  N.  Y.  28;  Crowson  ations  of  a  testator  on  the  point  of 

V.   Crowson,  72  S.  W.  1055,   172  Mo.  fraud  and  undue  influence. 

691;    Roberts    v.    Bidwell,    98   N.    W.  6.  Wright   v.   Tatham,   5   CI.   &    F. 

1000,  136  Mich.  191;  Knox's  Will,  98  670,   735;    Townsend  v.  Pepperell,   99 

221 


§    194  LAW   OF  WILLS.  [pAIlT    II. 

vel  non  irrelevant  testimony  sliould  be  excluded.^  Long  lapse  of 
time,  moreover,  after  the  testatoir's  decease  tends  necessarily  to 
discredit  any  testimony  wliich  bears  agains-t  the  usual  presump- 
tions for  or  against  the  will.* 

As  evidence  to  invalidate  or  corroborate  a  will,  the  age  of  the 
testator  and  his  bodily  state,  his  condition  and  circumstances,  his 
known  affections  and  preferences,  and  the  correspondence  or  con- 
tradiction of  the  will  to  these  affections,  tlie  manner  of  making  the 
will  or  codicil,  the  persons  around  him  at  the  time,  their  cap^acity 
and  credibility, — all  such  matters  under  reasonable  restraint  to 
the  point  at  issue  may  properly  go  to  the  jury,  or  to  the  judge  who 
tries  the  case.*  Business  transactions  performed  by  the  testator 
about  tiie  time  of  making  his  will,  have  been  admitted  in  evidence^ 
as  indicative  of  his  mental  capacity.^ 

Evidence  is  relevant  and  admissible  which  tends  to  show  that 
the  will  presented  is  in  conflict  with  the  fixed  purposes  previously 
expressed  by  the  tastator.^  On  the  other  hand,  it  is  strong  evidence 
of  capacity  to  make  the  will,  that  its  provisions  are  suitable,  and 
made  in  accordance  with  determinations  previously  expressed  by 
the  testator  while  clearly  sane.^ 

Mass.    40;    Brinkman    v.    Rueggesick,  Penn.  St.  41,  39  A.  46.     Evidence  of 

71   Mo.   553;    Roche  v.  Nason,   93   N.  non-experts    as    to    business    capacity 

Y.  S.  565  (family  hearsay)  ;  Vance  v.  excluded.      Trubey  v.   Richardson,   79 

Ubson,  66  Tex.  476,  1  S.  W.  179.     As  N.  E.  592,  224  111.  136.     See  136  N. 

to    conversations     in     the    testator's  Y.  S.  1109. 

presence   concerning   his   mental   con-  2.  Seale  v.   Chambliss,   35   Ala.   19. 

dition,  see  74  Iowa  352,  37  N.  W.  773 ;  3.  Couch  v.   Couch.   7   Ala.   519,  42 

Knox's  Will,  98  N.  W.  468,  123  Iowa  Am.    Deo.    602.      And   see    152    Mass. 

24.  470.  25  N.  E.  837;  Hammond  v.  Dike, 

7.  Spence  v.  Spence,  4  Watts.  165;  42  Minn.  273,  44  N.  W.  61,  18  Am. 
Ware  v.  Ware,  8  Greenl.  42;  127  St.  Rep.  502;  76  Tex.  574,  13  S.  W. 
Penn.  St.   564.  543;   Oxford  v.  Oxford,  71  S.  E.  8S3, 

8.  Chase   v.    Winans,    59    Md.    475.  136  Ga.   589    (pecuniary  condition  of 

9.  Sutton  V.  Sutton,  5  H;ur.  459.  claimants  to  bounty). 

1.  Kerr    v.    Lunsford,    31    W.    Va.  The  fact  that  a  will  confa'ns  a  be- 

659;   64  N.  H.  573;   98  N.  C.  566,  45  quest  of  a  sum   largely   in   excess  of 

S.   E.   526.     And   as  to  written  busi-  funds    applicable    to    its    payment    is 

ncsH  agreements  of  the  party,  see  184  not  conclusive  proof  of  testamentary 

222 


CHAP.  IX.]     PROOF  OF  CAPACITY  AND  INCAPACITY.  §  196 

FirifaUy,  as  the  scope  of  our  observations  Las  already  cleiarly  in- 
dicated, the  will  itself,  'the  insibrument  actually  presented  for  pro- 
bate, is  evidence  upon  any  issue  of  testamentary  capacity ;  *  and 
this  the  reader  sihould  bear  well  in  mind. 

§  195.  The  Same  Subject:    Declarations  of  those  interested  un- 
der the  Will. 

Declarations  made  before  its  execution,  by  parties  who  after- 
wards become  legatees  under  a  will,  are  not  admissible  against  the 
validity  of  the  will.^  But  upon  the  question  whether  declarations, 
admissions,  or  conversations,  made  by  a  devisee  or  legatee  in  the 
natuire  of  an  admission  against  his  own  interest  or  a  oonfeesion  are 
competent  testimony,  the  decisions  are  not  uniform ;  some  States 
permitting  such  declarations  to  be  shown ;  ®  while  in  other  States 
the  better  opinion  is  that  such  declarations  are  inadmissible  unless 
the  party  making  them  is  the  sole  beneficiary  under  the  will,  for  the 
reason  that  other  devisees  or  legatees  may  be  injuriously  affected 
by  the  admission  of  such  testimony.''  For  the  general  rule  is  that 
one  party  whose  interest  is  several  ought  not  to  be  prejudiced  by 
the  unauthorized  declarations  of  anotlier.  If  the  declaration  made 
under  no  solemnity  of  an  oaith  be  matter  of  opinion  rather  than  of 
fact,  there  is  all  the  more  reason  for  excluding  it.^ 

§  196.  Character  of  the  Witnesses  who  testify  as  to  Capacity. 

As  Judge  Redfield  has  well  observed,  testimony  to  establish  lucid 
intervals,  general  insanity,  or  monomania,  ought  to  possess  two 

incapacity.      Hall    v.    Perry,    87    Me.  St.   356,    and  cases   cited;    Blakey   v. 

569,  33  A.  160.  Blakey,  33  Ala.  611;  Ames'  Will,  Re, 

4.  Sitpra,  §  188.  51  Iowa,  590,  2  N.  W.  408;   99  Iowa 

5.  Ames,  Re,  51  Iowa,  596,  2  N.  W.  120,  68  N.  W.  591;  Benton  v.  Scott, 
408.  3   Rand.   309;    Clark   v.  Morrison,   25 

6.  Ware  v.  Ware,  8  Greenl.  42;  At-  Penn.  St.  453;  Forney  v.  Fennell,  4 
kins  V.  Sanger,  1  Pick.  192.  Cf.  W.  Va.  729.  See  also  How  v.  Pull- 
Phelps  V.  Hartwell,  1  Mass.  71.     And  man,  72  N.  Y.  269. 

see  Beall  v.  Cunningham,   1  B.  Mon.  8.  See    Atkins    v.    Sanger,    1    Pick> 

399;  Brown  v.  Moore,  6  Yerg.  272.  192;   Dale's  Appeal,  57  Conn.  127,  17 

7.  Thompson  v,  Thompson,  13  Ohio      A.  757,  and  cases  cited. 

223 


§    197  LAW  OF  WILLS.  [pAET    II. 

characteristics,  in  addition  to  truthfulness,  that  great  essential  of 
all  testimony:  (1)  It  should  come  from  persons  learned  and  exper- 
ienced in  the  whole  snhject.  (2)  It  should  come  as  far  as  possible 
from  pereions  who  have  had  ample  oppontunitj  to  observe  the  con- 
duct, habits,  and  mental  peculiarities  of  (the  individual  whose 
capacity  is  at  issue,  and  the  development  of  his  malady  from  its 
earliest  stage ;  and  whose  knowledge,  if  possible,  reaches  back  to 
a  period  anterior  to  the  malady.^  But  pcTsons  whose  testimony  is 
founded  upon  so  ample  and  skilful  experience  sure  rarely  to  be 
found ;  or  else,  being  of  the  family,  they  have  some  pecuniary  in- 
terest either  in  breaking  or  upholding  the  will.  The  family  doctor, 
if  ^there  be  one,  unbiased  and  of  sound  judgment,  who  made  the 
patient's  case  his  careful  study  in  advance  of  any  controversy, 
usually  combines  these  requisites  in  the  highest  degree.  But  such 
an  investigation  in  court  calls  commonly  fotr  a  full  detail  of  the 
facts  bearing  upon  the  testator's  sanity  from  unprofessional  wit- 
nesses, and  ithe  discussion  and  estimation  of  those  facts  before  the 
jury,  aided  by  the  opinions  of  a  class  of  men  prof  ess  ionally  CO'U- 
versant  with  insane  symptoms,  and  qualified  as  experts  to  impart 
instruction  on  such  an  issue. ^ 

§  197.  Whether  Unprofessional  Persons  can  give  their  Opinions 
as  to  Insanity. 

It  is  a  general  principle  that  witnesses  may  state  facts  fully  so 
far  as  their  observation  extended,  but  not  give  opinions  outside 
the  range  of  their  peculiar  training  and  experience.  Yet  the  habit 
of  generalizing  upon  facts  is  universal ;  and  within  a  certain  com- 
pass every  intelligent  person's  opinion  will  be  found  valuable.  An 
illiterate  man's  judgment  of  weather  phenomena,  of  crops,  of  forest 
animals  and  .their  trails,  may  far  surpass  a  scholar's;  but  only  a 
scholar  can  discuss  questions  pertaining  to  universal  language  and 
history.  Learned  or  unlearned,  we  are  all  keen  obscuwers  of  char- 
acter where  we  are  familiar.  As  for  the  issues  of  testamentary 
capacity,  it  requires  men  of  legal  training  to  estimate  their  legal 

9.  1   R.-.lf.  Wills,  137.  1.  lb. 

224 


CPIAP,    IX.]  PROOF  OF  CAPACITY  AND  INCAPACITY.  §    198 

bearing;  and  men  of  medioal  training  in  a  peculiar  direction  to 
deteot  the  finer  shades  of  mental  disorder;  yet  mos't  persions  of 
sense  and  good  feeling  deem  tliemselves  oap-able  of  appreciating 
whether  those  of  their  own  family  and  acquaintance  are  out  of  their 
heads  or  not.  Hence  the  doubt  and  uncertainty  in  our  law  as  to 
whether  ordinary  witnesses  can  give  their  opinions  upon  the  point 
of  a  testator's  insanity,  even  admitting  ^  that  on  subjects  where 
training  and  skill  are  needful  they  cannot.  That  legal  doubt  and 
uncertainty  let  us  briefly  investigate. 

§  198.  Subscribing  Witnesses,  though  not  Experts,  may  testify 
as  to  Apparent  Sanity. 

In  the  first  place,  it  is  universally  conceded  thiai  the  Siubscribing 
witnesses  .to  a  will,  even  thoiu^h  not  experts  noT  familiar  with  the 
testator's  habits  and  character,  may  testify  as  to  his  .apparent  sanity 
or  insanity  at  the  date  of  their  subscription.^  And  by  admitting 
unreservedly  the  opinions  of  such  persons  on  this  point,  the  law  at 
once  refuses  to  affirm  that  none  but  experts  are  competent  to  pro- 
nounce upon  the  broad  fact  of  one's  mental  soundness,  or  unsound- 
ness. The  reason  why  subscribing  witnesses  are  thus  allowed  to 
express  an  opinion  of  the  testator^s  sanity  is,  to  use  the  language  of 
a  Massaohuisetts  judge,  "  because  that  is  one  of  the  facts  necessary 
to  the  validity  of  the  will,  which  the  law  places  them  around  the 
testator  ito  attest  and  testify  to."  * 

2.  Irving  v.  Bruen,  79  N.  E.  1107,  12  Mich.  459;  Brooke  v.  Townshend, 
186  N.  Y.   605.  7     Gill.     10;     Turner     v.     Cheesman, 

3.  Brooks  v.  Barrett,  7  Pick,  94;  15  N.  J.  Eq.  243;  Kaufman  v.  Caugh- 
Hastings  v.  Rider,  99  Mass.  624;  May  man,  49  S.  C.  159,  27  S.  E.  16;  Fiee- 
V.  Bradlee,  127  Mass.  414;  CiUey  v.  man  v.  Freeman,  71  W.  Va.  503,  76 
Cilley,     34     Me.     162;     Robinson     v.  S.  E.  657. 

Adams,  62  Me.  369,  16  Am.  Rep.  473;  4.  Gray,      J.       (afterwards      Chief 

Dewitt  V.  Barley,  9  N".  Y.  371;  Clapp  Justice   of   Massachusetts,    and   Asso- 

V.  Fullerton,  34  N.  Y.  190;  Logan  v.  ciate   Justice   of   the   Supreme    Court 

McGinnis,   12   Penn.   St.   27;    DiifTield  of   the    United    States),    in   Hastings 

V.   Morris,   2   Harring.   375;    Appleby  v.  Rider,   99  Mass.   624.     Tbe  reason 

V.  Brock,  76  Mo.  314;  Gibson  v.  Gib-  is  also  expressed  in  a  Missouri  case: 

son,  9  Yerg.  329 ;  Beaubien  v.  Cicotte,  "  Attesting     witnesses     have     always 
15                                  225 


§    19S  LAW  OF  WILLS.  [pART    !!► 

Yet,  as  we  have  already  seen,  ihe  expression  of  such  an  opinion 
by  subscribing  witnesses  is  by  no  means  indispensable  in  estab- 
lishing a  will ;  for,  even  though  any  or  all  the  witnesses  should  be 
■dead  or  beyond  the  reach  of  process,  or  wiholly  forgetful  of  the 
circumstances  attending  the  attestation,  or  otherwise  incapable  of 
aiding  a  jusit  conclusion  in  coiu't  on  the  question  of  sound  or  un- 
sound mind,  this  issue  might  be  determined  and  the  will  admitted 
or  probate  refused  without  them.^  And  certainly  the  testimony  of 
subscribing  witnesses  on  this  point  is  by  no  means  conclusive,  but 
may  be  rebutted  by  other  evidence  to  (the  contrary.®  For  the  weight 
and  force  to  be  given  to  the  opinion  of  any  subscribing  witness 
regarding  th<e  testator's  capacity  depends,  as  in  the  case  of  other 
witnesses,  upon  the  extent  of  his  actual  knowledge  in  this  direc- 
tion and  the  opportunities  afforded  for  forming  his  opinion.^  It 
is  true  th.at  the  subscribing  witness  may  state  his  belief  as  to  the 
testator's  soundness  of  mind  without  first  showing  the  grounds 
upon  which  that  belief  was  based ;  ^  but  all  the  facts  seen  or  known 
by  him  ait  the  time  are  proper  subjects  of  inquiry  by  either  party,, 
and  ought  to  be  elicited  whenever  there  is  a  controversy.® 

been  permitted  to  express  an  opinion  351;    Stevens    v.    Vancleve,    4    Wash, 

as  to  the  sanity  of  the  testator,  on  C.  C.  262. 

the  ground  that  the  law  has  made  it  8.  Logan  v.  McGinnis,  12  Penn.  St. 

their  duty  to  inspect  the  testator's  ca-  27;    Robinson  v.  Adams,   62  Me.  369.. 

pacity,    and    the    law    presumes    they  9.  Cilley     v.     Cilley,     34    Me.    162. 

did   observe  and  judge    of    it,    while  When  these  facts  are  elicited,  it  w  11 

other  witnesses  were  by  some  author-  often     appear    that    the    subscribing 

ities   permitted   to   speak   only  as   to  witness  had  very  little  foundation  for 

facts."      Appleby    v.    Brook,    76    Mo.  an  opinion  upon  the  subject.     Never- 

314.     For  an  application  of  the  Illi-  theless,    our    courts    give    every    sub- 

noJ.9   statute   on   this   point,   see   Bice  scribing    witness    the    full   benefit    of 

V.  Hall,  120  111.  597,  12  N.  E.  236.  the  trust  which  the  maker  of  the  will 

5.  See  Cilley  v.  Cilley,  34  Me.  162;  has  obviously  placed  in  him,  and  re- 
supra,    §    175.  fuse    to    limit    his    expression    of    an 

6.  Cilley  v.  Cilley,  34  Me.  163;  opinion  by  any  preliminary  inquiry 
Harper  v.  Harper,  1  N.  Y.  Supr.  351;  as  to  whether  he  had  good  ground  for 
Orser  v.  Orser,  24  N.  Y.  51.  forming  one.     "  It  is  the  fact  of  be- 

7.  Turner  v.  Cheesman,  15  N.  J.  ing  a  witness  to  the  will  that  gives- 
243;  Harper  v.  Harper,  1  N.  Y.  Supr.  this  right  to  ask  his  opinion  of  the 

22G 


CHAP.    IX.]  PROOF  OF  CAPACITY  AIN^D  I:N^CAPACITT.  §    199 

A  subscribing  witness  who  testifies  against  the  capacity  of  the 
testator  is  not  only  open  to  disproof  by  the  proponent  of  the  will^ 
but  may  be  impeached  by  other  testimony,  tending  to  discredit  his 
veracity.  Merely  because  one  is  a  subscribing  witness,  his  opinion 
is  entitled  to  no  greater  weight  than  it  really  deserves.^  A  sub- 
scribing witness's  testimony  is  not  imfrequently  discredited.^^ 

§  199.  Whether  Other  Witnesses,  not  Experts,  may  state  their 
Opinions  as  to  Sanity;  Unfavorable  Decisions. 

Whether  other  witnesses,  wiho  are  not  experts,  may  likewise  be 
permitted  to  state  their  opinion  concerning  the  testator's  sanity  is 
a  question  upon  which  our  courts  do  not  agree.  In  Massachusetts, 
whatever  may  be  the  rule  elsewhere,  it  is  repeatedly  held  that  the 
witnesses  to  the  will,  the  family  physician  who  has  been  medical 
adviser  of  the  deceased,  and  witnesses  who  are  qualified  as  experts 
in  the  knowledge  of  mental  disease,  are  alone  competent  in  contests 
of  thiis  character  to  give  their  opinions  in  evidence.  The  testimony 
of  other  witnesses  is  confined  to  a  statement  of  the  facts  and  declar- 
ations, manifesting  mental  condition,  of  which  they  have  knowl- 
edge.^ The  reasons  given  for  excluding  such  other  opinions  is  that 
those  forming  them  have  no  peculiar  duty  or  capacity  to  do  so,  that 
the  matter  requires  special  knowledge  and  skill,  which  such  wit- 
nesses have  not,  that  every  unskilled  witness  has  a  different  stan- 
dard, and  tihat  the  count  or  jury  can  quite  as  well  reach  a  conclu- 
sion fi'om  proof  of  the  details  of  the  acts  and  conduct  of  the  person 
whose  mental  capacity  is  in  question.^ 

soundness  of  mind  of  the  testator.  It  testator's  sanity  which  he  had  at 
may  be  given,  although  the  witness  the  time  of  execution,  he  cannot  state 
was  suddenly  called  in,  and  heard  an  opinion  which  he  has  subsequent- 
only  the  request  to  sign,  and  the  de-  ly  formed.  Williams  v.  Spencer,  150 
claration  of  its  being  his  last  will."  Mass.  346,  23  N.  E.  105,  5  L.  R.  A. 
Kent,  J.,  in  Robinson  v.  Adams,  32  790.  In  general  see  supra  §§  175, 
Me.  369,  16  Am.  Rep.  473.  180. 

1.  Thornton    v.    Thornton,    39    Vt.  2.  Hastings  v.  Rider,  99  Mass.  622, 

122.     See  Stirling  v.  Stirling,  64  Md.  and  ciises  cited;   Nash   v.  Hunt,   116 

13S.     It  is  held  in  Massachusetts  that  Mass.   414. 

while  such  a  witness  may  at  the  pro-  3.  Hastings  v.  Rider,  99  Mass.  622. 
bate   give   the   opinion   regarding   the 

227 


§  199 


LAW  OF  WILLS. 


[part   II. 


Nevertheless,  it  is  conceded  by  the  courts  of  this  State  that  In 
eliciting  the  testimony  of  witnesses  not  competent  to  give  an  opin- 
ion of  the  testator's  mental  condition,  practical  difficulty  is  found 
in  confining  them  to  material  facts  and  preventing  the  direct  or  in- 
direct expression  of  an  opinion.  It  is  not  easy  for  most  witnesses 
to  "  disitinguish  between  matters  of  fact  and  opinion  on  this  sub- 
ject ;  between  the  conduct  and  traits  of  character  they  observe  and 
the  impression  which  that  conduct  and  those  traits  crea-te.  "  * 
Indeed,  the  latest  Massachusetts  decisions  disclose  less  confidence 
than  formerly  in  the  propriety  of  suppressing  unprofessional 
opinions  on  such  matters.  Thus,  upon  the  issue  of  a  testator's 
sanity,  persons  acquainted  with  him,  although  neither  attesting 
witnesses  nor  medical  experts,  have  been  allowed  to  testify  whether 
they  noticed  any  change  in  his  intelligence  or  any  want  of  coherence 
in  his  remarks.^  And  upon  some,  opinions  of  eminent  judges  in 
this  State  well  expressed,  the  whole  subject  might  be  re-opened  by 
assailing  the  main  position  that    mental    soundness  in    a    given 


4.  Baxter  v.  Abbott,  7  Gray,  71, 
79;  Ellis  V.  Ellis,  133  Mass.  469.  For 
an  illustration  of  this  difficulty  upon 
an  equivocal  question  put  to  a  wit- 
ness, see  May  v.  Bradlee,  127  Mass. 
414.  Here  at  the  trial  a  question 
was  put  to  an  unprofessional  witness 
(the  guardian  of  the  decedent)  which 
the  judge  allowed,  explaining  it  to 
mean,  whether  the  witness  ever  ob- 
served any  fact  which  led  him  to  in- 
fer that  there  was  any  derangement 
of  intellect.  On  appeal,  tliere  was 
considered  no  ground  of  exception  to 
the  question   thus   put. 

5.  Barker  v.  Comins,  110  Mass. 
477.  And  see  Nash  v.  Hunt,  116 
Mass.  237,  a  still  later  case,  in  which 
an  unprofessional  witness  was  per- 
mittc/1  to  say  whetbor  he  observed 
"  no  incoberfnnc  of  thought  in  the 
testator,     nor    anytliirig    uiis  lUiul    or 

228 


singular  in  respect  to  his  mental  con- 
dition." In  both  these  cases  the  Su- 
preme Court  ruled  that  such  inquiries 
related  to  facts,  not  opinions;  which 
only  serves  to  show  to  what  subtle 
distinctions  the  Massachusetts  doc- 
trine is  at  last  reduced.  If  testify- 
ing thus  to  the  appearance  of  the  tes- 
tator is  not  giving  the  witness's  own 
opinion  as  the  result  of  his  personal 
observation,  it  comes  certainly  very 
close  to  it.  Judge  Redfield  takes  this 
view  in  1  Redf.  Wills,  144,  note,  cit- 
ing Poole  v.  Richardson,  3  Mass.  330, 
where  it  is  said  that  "  other  wit- 
nesses were  allowed  to  testify  to  the 
appearance  of  the  testator,  and  to 
any  particular  facts  from  which  the 
state  of  his  mind  might  be  inferred, 
but  not  to  testify  merely  their  opin- 
ion or  judgment." 


CHAP.    IX.  j  I'KOOF  OF  CAPACITY  AND  INCAPACITY.  §    200 

case  is  a  condition  of  which  medical  men  and  experts  are  necessar- 
ily better  capable  of  judging  upon  theory  tiian  those  personally 
familiar  with  the  patient  upon  long  and  habitual  observation  of  his 
individual  traits  and  peculiarities ;  ^  and  recalling,  furthermore, 
tliait  many  of  the  facts  and  appearances  upon  which  an  observer 
bases  his  intelligent  opinion  of  insanity  cannot  be  so  vividly  repro- 
duced by  the  cleverest  of  mimics  that  a  jury  could  pass  upon  the 
case  with  equal  facility. 

§  200.  The  Same  Subject. 

There  are  a  few  other  States  in  which  tlie  opinions  of  witnesses 
who  are  neither  medical  men,  experts,  nor  subscribing  witnesses, 
have  ibeen  ruled  out  as  incompetent  where  the  sanity  of  the  testator 
is  at  issue.^  As  in  Maine,^  and  in  Alabama ;  ^  and  in  Texas.^  So 
until  recenitly  in  New  Hampshire;  ^  but  in  that  State  the  courts 
have  at  length  reversed  this  rule,  impressed  with  the  practical  diffi- 
■culty  which  attends  the  separation  of  fact  from  opinion  where 
evidence  is  given  touching  the  mental  condition  of  a  deceased 
person.^ 

In  New  York  the  general  rule  was  once  announced  by  a  divided 

6.  In  Baxter  v.  Abbott,  7  Gray,  H.  120.  And  see  State  v.  Pike,  49  N. 
Thomas,     J.,     expressed     himself     as       H.  399. 

disposed,    were    the    question    a    new  8.  Wyman    v.    Gould,    47   Me.    159. 

one,    to   allow    every   witness,    on    an  But   cf.   Robinson  v.   Adams,   62   Me. 

issue   of  sanity,   to  give   his  opinion,  159.     16  Am.  Rep.     410. 

subject     to     cross-examination     upon  9.  Torrey  v.  Burney,  113  Ala.  496, 

the  reasons  upon  which  it  was  based,  21  S.  348. 

his    degree    of    intelligence,    and    his  1.  Gehrke  v.  State,  13  Tex.  568. 

means  of  observation.     See  also  Cora-  2.  Boardman    v.    Woodman,    47    N. 

monwealth   v.   Sturtivant,    117   Mass.  H.  120. 

122,   where   Endicott,   J.,   in   a   some-  3.  Hardy  v.  Merrill,  56  N.  H.  227, 

what   different    connection,    illustrat-  22   Am.   Rep.   441,   which  adopts   the 

ed  with  copious   learning  this  whole  dissenting  opinion  of  Doe,  J.,  in  State 

subject  of  non-expert  testimony  upon  v.  Pike,  49  X.  H.  399,  6  Am.  Rep.  533, 

the    opinion    of    sanity.       See,    also,  where   an    exhaustive    review    of    the 

Clark  V.  Clark,  168  Mass.  523,  47  N.  cases  on  this  subject  may  be  found; 

E.  510.  64  N.  H.  573. 

7.  Boardman    v.    Woodman,    47   N. 

229  • 


^    201  LAW  OF   WILLS.  [pAKT    II. 

court  in  substantial  accord  wi/th  the  ]\Iassachusetts  doctrine; 
namely,  so  as  to  confine  general  witnesses  to  the  statement  of  facts 
only  where  the  issue  of  insanity  was  raised.'*  But  the  authority  of 
that  case  '^  was  afterwards  sliaken ;  and  it  was  declared  tliat  here, 
as  in  other  instances  where  the  minute  appearances  cannot  be  so 
perfectly  described  that  a  jury  may  form  a  just  conclusion  from 
them,  opinions  drawn  from  personal  observations  are  admissible  ia 
evidence  from  necessity.^  And  the  rule  of  that  State,  as  more  lately 
■declared,  is,  that  tlie  general  witness  when  examined  as  to  facts 
within  his  own  knowledge  and  obser\-ation  which  tend  to  show  the 
soundness  or  unsoundness  of  the  testator's  mind,  may  characterize 
as  rational  or  irrational  the  acts  and  declarations  to  which  he  tes- 
tifies,  and  show  the  impression  they  produced  upon  him ;  but  that, 
being  an  oibser\^er  and  not  a  professional  expert,  he  cannot  go  be^ 
yond  his  conclusions  from  the  specfic  facts  he  discloses,  nor  express 
his  opinion  on  the  general  question  whether  the  mind  of  the  tes- 
tator was  sound  or  unsound.^ 

§  201.  The  Same  Subject:    Favorable  Decisions. 

On  the  other  hiand,  the  great  preponderance  of  our  American 
decisions  favors  admitting  generally  tJie  testimony  of  persons,  pro- 
fessional or  unprofessional,  as  to  matters  of  personal  observation 
bearing  upon  the  testator's  sanity,  without  attempting  to  discrim- 
inate closely  between  facts  and  opinions.  And  in  most  States  an 
unprofessional  witness  never  was,  or  else  is  no  longer,  confined  to 
a  recital  of  facts  from  which  the  jury  must  draw  unaided  an  in- 
ference of  sanity  or  insanity,  but  he  may  give  his  opinion  touching 
the  testator's  sanity  as  the  result  of  his  own  observation  and  famil- 
iarity.^   ^^^by,  indeed,  the  non-expert  subscribing  witness  should  be 

4.  DeWitt  V.  Barley,  9  N.  T.   371.       00  Am.  Doc.  681;   O'Brien  v.  People, 
The  lower  courts  had  been  tending  in      36  N.  Y.  276;   86  N.  Y.  517. 

the    other    direction.      See    s.    c,    13  7.  Eider  v.  Miller,  86  N.  Y.  507. 

Barb.  S.'iO;  Culver  v.  Huslam,  7  Barb.  8,  Hardy  v.  Merrill,  56  N.  H.  227, 

.''.1  t:    1   lledf.  Wills,  144,  note.  22  Am.  Rep.  441,  and  cases  elaborate- 

5.  DeWitt  V.  Barley,  17  N.  Y.  340.  '\-    reviewed;    Dunham's    Appeal,    27 

6.  CTapp  V.  Fullerton,  34  N.  Y.  190,  Conn.     192;    4    Conn.    203;  Cram    v. 

230 


CHAr.  IX.]     TROOF  OF  CAPACITY  AXD  INCAPACITY.         §  201 

SO  higkly  privileged  in  itliis  respect  above  the  non-expert  general 
witness  who  knew  well  the  business  and  social  habits  of  th^e  testator 
at  the  time  when  the  will  was  made,  courts  fail  readily  to  appre- 
hend.^ And  comparing  together  the  non-expert  witness  with  his 
facts  and  the  expert  without  them,  it  has  well  been  said  that  the 
judgment  of  a  witness  founded  on  actual  observation  of  the  capac- 
ity, disposition,  temper,  character,  peculiarities  of  habit,  form, 
features,  or  handwriting  of  others,  is  more  than  a  mere  expert 
opinion.  It  approaches  to  knowledge,  and  in  fact  is  knowledge,  so 
far  as  the  imperfection  of  human  nature  will  permit  knowledge  of 
these  things  to  be  acquired,  and  such  knowledge  is  proper  evidence 
for  'the  jury.^  Nor  does  it  appear  essentially  different  whether  one 
testifies  from  his  awn  study  of  the  case  and  the  facts  he  has  per- 
sonally observed  and  described  that  the  testator  appeared  an  insane 
person  or  thajt  the  witness  'believed  him  such.^  Persons  present 
when  the  will  was  executed  and  having  as  good  opportunities  of 
obs-ervation  and  as  little  bias  as  the  subscribing  witnesses  them- 
selves, afford  an  instance  in  point.' 

Cram,  33  Vt.  15;   Rambler  v.  Tryon.  9.  Clary   v.   Clary,   2   Ired.   78,   ap- 

7   S.   &  R.   90,   10   Am.  Dec.   444;    23  proved  in  Appleby  v.  Brock,   76  Mo. 

Penn.  St.  117;  Clary  v.  Clary,  2  IreJ.  314,  317.     But  it  deserves  to  be  said 

78;  Brooke  v.  Townshend,  7  Gill,  10;  that  witnesses  present  at  the  very  act 

Weems  v.  Weems,  19  Md.  334;   Den-  of     execution,     whether     subscribing 

nis  V.  Weekes,  51  Ga.  24;  Roberts  v.  Avitnesses    to    the    will    or    not,    are 

Trawick,  13  Ala.  68 ;  Stubbs  v.  Hous-  brought  so  immediately  into  contact 

ton,  33  Ala.   555;   Appleby  v.  Brock,  with  the  transaction  in  question,  that 

76  Mo.  314;    Beaubien  v.  Cicotte,   12  their  opinions  ought  to  be  of  especial 

Mich.   499;    Ryman   v.    Crawford,    86  value  in  such  controversies. 

Ind.   262;    110   Ind.   337;    Pideock   v.  1.  Dunham's  Appeal,  27  Conn.  192. 

Potter,  68  Penn.  St.  342,  81  Am.  Rep.  2.  Poole    v.    Richardson,    3    Mass. 

181;    Eddey's   Appeal,    109   Penn    St.  330,  cited   §   199. 

406;   Runyan  v.  Price.  15  Ohio  St.  1.  3.  Brown    v.    Mitchell,    75    Tex.    9. 

86  Am.  Dec.  459;   55  Iowa,  28,  7  N".  A    witness    gave    an    opinion    upon 

W.    404;    American   Bible   Society    v.  facts   and  observation  by  comparison 

Price,  115  111.  623,  5  N.  E.  126;  Meek-  with   the  capacity   of  a  child,   in   59 

er  V.  Meeker,  74  Iowa  352 ;  7  Am.  St.  Conn.  226,  22  A.  82,  21  Am.  St.  Rep. 

Rep.  489;    37  N.   W.  773;    Martin   v.  85.     A  stenographer's  opinion,  formed 

Beatty,    254   111.    615,    98   N.    E.    995  upon  good  opportunity,  was  admitted 

{court's   liberal   discretion).  in  97  Iowa,  192,  66  N.  W.  99.     And 

231 


§    201  LAW  OF  WILLS.  [PAET    II. 

Let  US  in  tihis  connection  remark  once  more,  how  often  the  con- 
viction of  mental  unsoundness  present  is  forced  upon  the  familiar 
observer  in  a  given  case  by  little  signs,  like  a  roving  eye,  a  strange 
tone  of  the  voice,  uneasy  gestures,  something  nnnatural  in  the 
individual  that  those  who  know  his  usual  moods  perceive  quickly 
but  cannot  fully  detail.  So  is  it,  too,  with  intoxication ;  how  slow- 
ly, in  many  instances,  is  that  condition  perceived  by  strangers  in 
a  mixed  company,  while  the  searching  glance  of  an  anxious  friend 
or  kinsman  detecte^d,  the  instant  the  drinier  entered  the  room,  not 
only  that  he  had  been  drinking  but  how  drunk  he  was.  What  gave 
the  impression  it  would  be  bard  to  say  and  harder  still  to  repro- 
duce; but  the  certainty  of  that  impression  is  not  to  be  shaken. 
iSTature  trains  ns  all  to  observe  the  lurking  expressions,  the  moods, 
the  habits  and  disposition  of  those  about  us:  this  is  prompted  in  a 
degree  by  the  instinct  of  affection,  of  self-preservation ;  and  when 
one  we  have  long  waitehed  shows  signs  of  disease,  of  mental  malady, 
or  simply  of  settled  aversion,  the  mind  notes  much  that  cannot  be 
drawn  out  at  a  trial  by  question  and  answer ;  but  what  one  asserts 
of  the  individual  most  confidently  is,  that  he  was  not  like  himself, 
and  to  that  opinion  one  holds  firmly.  And  on  the  whole  it  is  better 
that  the  court  should  allow  such  opinions  to  be  stated  together  with 
the  facts,  and  test  their  accuracy  by  a  cross-examination  as  to  the 
grounds  on  w'hich  they  were  based,  and  the  character  and  bias  of 
the  witness  hdmself,  than  to  shut  out  from  the  jury  one  of  the  most 
important  means  of  eliciting  the  truth  where  deaith  necessitates  that 
all  evidence  upon  the  issue  of  mental  condition  must  be  of  a  sec- 
ondary sort  and  without  a  personal  inspection.* 

see  Loughney   v.   Loughney.   87   Wis.  impalpable  but  important  facts  upon 

92;    189  N.  Y.  S.  543;   Chamberlayne  which     men     rest     in     dealing    with 

Evid.    §§    1921,    1927.  each  other.    ...    In  many  cases  the 

4.  "  It  is  a  matter  of  daily  exper-  facts  which  can  be  described  will  be 

ience  that  the  opinion  of  an  intelli-  very  significant  to  a  jury,  while  there 

gent  and   familiar  eye-witness  is  the  are  many   facts  susceptible  of  a   dif- 

only  satisfactory  means  of  ascertain-  ferent    interpretation,    from    which    a 

ing  mental  condition,  or  disposition,  jury  could  obtain  no  light  wliatever, 

or  expression,  or  any  other  of  those  without    the    aid    of    the    witness's 

232 


CHAP.  IX.]    PKOOF  OF  CAPACITY  AND  INCAPACITY.         §  203 

§  202.  The  Same  Subject:    English  Rule. 

It  is  generally  admitted  that  in  the  English  ecclesiastical  courts 
as  at  the  civil  law,  tliere  was  no  strict  exclusion  of  matters  of  opin- 
ion, where  the  testimony  of  unprofessional  witnesises  was  taken 
upon  the  question  of  mental  soundnetss  as  affecting  a  will.^  But 
some  have  assumed  that  the  common  law  excluded  all  such  testi- 
mony; ®  while  other  authorities  maintain  with  good  reason  to  the 
contrary.^ 


§  203.  Restrictions  where  the   Opinions  of  General  Witnesses 
are  Admissible. 

But  the  opinion  of  one  who  is  neither  an  expert  nor  a  saibscrib- 
ing  witness  Sihould  not  be  received  except  in  connection  with  the 
facts  upon  which  th,ait  opinion  is  based.*  And  it  seems  entirely 
proper  to  question  this  general  witness  first  as  to  what  he  has  ac- 
tually observed  for  himself  concerning  the  testator's  sanity,  in 
order  to  lay  a  foundation  for  excluding  or  discrediting  any  opinion 

judgment.      The  strongest  indications  Mo.  314,  318.     And  see  Cline  v.  Lind- 

of    mental   weakness   or   observations  sey,  110  Ind.  337,  11  N.  E.  441. 

often   exist   in   appearances   incapable  5.  Hastings     v.     Rider,     99     Mass. 

of  reproduction."  Beaubien  v.  Cicotte,  624,  per  Gray,  J.;  Wright  v.  Tatham, 

12  Mich.  459.  5  CI.  &  Fin.  692. 

The  same  general  idea  is  well   ex-  6.  lb. 

pressed  in  a  recent  case,  as  follows:  7.  State  v.  Pike,  51  N.  H.  185,  per 

"  The  opinion  of   an   intelligent   wit-  Doe,  J.     For  the  liberal   rule  of   the 

ness  having  adequate  opportunity  of  ecclesiastical    courts,    see    Wright    v. 

observing    and    judging,    is    the    best  Tatham,  5  CI.  &  Fin.  692;   1  Phillim. 

testimony  which  can  be  adduced;   for  84,   122;   2  Phillim.  449. 

no   mere   description   of   the   acts,   or  8.  "  This  rule  does  not  require  the 

words,  or  tone  of  voice,  or  glance  of  witnesses  to  describe  what  is  not  sus- 

the  eye,  or  general  expression  of  the  ceptible  of  description,  nor  to  narrate 

face  or  manner  or  bearing,  of  a  per-  facts  enough  io  enable  a  jury  to  form 

son    whose    mental    condition     is   in  an   opinion    from    these   alone.     This 

question,  can  convey  to  the  jury  the  would  be  impossible;  and,  if  it  could 

same  impression  or  indications  of  in-  be  done,  there  would  be  no  occasion 

sanity  or  mental  debility,  which  they  for  any  opinion  from  the  witnesses." 

will  create  in  the  mind  of  a  compe-  Campbell,  J.,  in  Beaubien  v.  Cicotte, 

tent  observer."    Appleby  v.  Brock,  76  12  Mich.  459.     See  87  N.  C.  477. 

233 


^    203  LAW   OF   WILLS.  [pART    II. 

he  may  entei^tain.^  For  in  order  to  be  received  in  sourt,  or  carry 
weight,  the  opinion  of  a  non-expert  witness  must  not  be  derived 
from  what  otliers  have  witnessed,  nor  from  rumor  or  hearsay,  nor 
from  any  hypothetical  statement  of  the  case,  but  it  should  be 
founded  upon  his  own  actual  knowledge  and  observation  of  the 
testator's  appearance  and  conduct,  with  fair  opportunity  of 
judging.^ 

Neighbours  and  friends  of  the  testatoir,  as  well  as  those  of  his  own 
household  and  family,  persons  who  have  long  known  and  dealt  with 
him,  and  conversed  with  him  before  and  after  the  execution  of  his 
will,  may,  under  such  a  rule,  be  found  quite  competent  to  entertain 
an  opinion  touching  his  sanity.^  But  the  more  constant  and 
familiar  the  acquaintance,  the  more  trustworthy  of  course  is  the 
testimony,  all  other  things  being  equal.  And  while  the  better  rule 
does  not  pTescribe  long  intimacy  as  the  indispensable  condition 
upon  which  a  general  witness  may  run  from  fact  into  opinion  in 
giving  his  testimony,  nor  fix  the  precise  quantum  or  character  of 
one's  acquaintance  with  ithe  deceased, — foir  the  court  should  in  such 
cases  be  allowed  much  latitude  of  discretion,  according  to  the  cir- 
cumstances,— it  is  undoubtedly  true  that  the  mere  naked  or  ill- 
founded  opinion  of  a  general  witness,  or  of  a  mere  casual  acquaint- 
ance, in  regard  to  the  testator's  sanity,  being  entirely  worthless,  is 

9.  Pidcock   V.   Potter,   68   Penn.   St.  ions  come  out  without  any  very  strict 

342,  states  the  Pennsylvania  rule  to  exclusion,   and   judge   of   their   conse- 

"be,    that    a    non-professional    witness  quences  by  the  grounds  on  which  they 

may  state  his  opinion  as  to  the  san-  are  based. 

ity  or  insanity  of  the  testator,  after  1.  Cram  v.  Cram,  33  Vt.  15;  Dun- 
stating  the  facts  upon  which  his  opin-  ham's  Appeal,  27  Conn.  192 ;  Hardy 
ion  is  founded.  And  see  Roberts  v.  v.  Merrill,  56  N.  H.  227,  22  Am.  Rep. 
Trawick,  13  Ala.  68,  which  appears  441;  Bell  v.  McMaster,  29  Hun,  272; 
to  rule  that  such  opinions  are  not  Boaubien  v.  Cicotte,  12  Mich.  499; 
admissible  until  the  facts  upon  which  Appleby  v.  Brock,  76  Mo.  314;  Gib- 
thoy  are  based  are  stated,  and  can  son  v.  Gibson,  9  Yerg.  329;  Turner 
then  be  given  only  by  those  whose  v.  Cheesman,  15  N.  J.  Eq.  243;  Gar- 
long  and  familiar  acquaintance  with  rison  v.  Garrison,  ib.  266;  72  Iowa 
the  deceased  qualifies  them  especial-  84,  33  N.  W.  374. 
■]y  to  judge  of  sanity.  But  it  ap-  2.  Sec  Ryman  v.  Crawford,  86  Ind. 
pears  to  us   fairer  to  let  these  opin-  262,   87  N.   Y.   514. 

234 


CHAP. 


IX.] 


PKOOi'  OF  CAPACITY  AND  INCAPACITY. 


204 


equally  inadmissible  as  evidence.^  For  the  impression  made  upon 
the  mind  of  an  intelligent  witness  by  what  he  has  observed  in  the 
conduct,  manner,  bearing,  conversation,  and  acts  of  another  may 
be  of  great  help  to  a  jury;  but  far  otherwise  the  impression  pro- 
duced by  hearsay,  prejudice,  or  idle  gossip.'' 

§  204.  Opinion  of  Physicians,  Attendants,  etc. 

The  opinion  of  a  physician  on  the  question  of  a  testator's  sanity 
is  entitled  to  great  weighit,  especially  if  he  regularly  attended  the 
testator  a;t  or  about  he  time  when  the  alleged  will  was  executed.^ 
Under  that  principle  already  discussed,  which  most  States  favor, 
the  opinion  of  any  physician  grounded  upon  his  own  opportunities 
of  observation  would  be  competent  evidence,  while  his  professional 
knowledge  gives  thiat  opinion  far  greater  force.  And  so,  too,  with 
-any  skilful  nurse  or  attendant  whose  narrative  of  the  case,  accom- 
panied by  ithe  personal  impressions  received  from  the  patient's  acts 
and  behavioir,  should  deserve  high  consideration.^ 


3.  See  Beaubien  v.  Cicotte,  12  Mich. 
459;  Morse  v.  Crawford,  17  Vt.  502; 
Stackhouse  v.  Houton,  15  N.  J.  202; 
Dorsey  v.  Warfield,  7  Md.  65;  Brooke 
V.  Townshend,  7  Gill,  10;  Poole  v. 
Richardson,  3  Mass.  330;  Harrison 
V.  Rowan,  3  Wash.  C.  C.  580;  Grand 
Lodge  V.  Wieting,  168  111.  408,  61 
Am.  St.  Rep.  123,  48  N.  E.  59.  No 
precise  time  or  character  of  previous 
acquaintance  can  be  laid  down  as  a 
fixed  rule;  much  depends  upon  the 
kind  and  degree  of  mental  malady. 
Powell  V.  State,  25  Ala.  21.  But  a 
personal  acquaintance  begun  with  the 
testator  some  time  after  the  will  was 
executed,  has  no  positive  or  direct 
bearing  upon  the  main  issue  of  ca- 
pacity. Eckert  v.  Flowry,  43  Penn. 
St.  46. 

Although  a  direct  question  of  opin- 


ion concerning  the  testator's  sanity 
may  be  improper,  j'et  from  its  con- 
nection with  the  witness's  prior  tes- 
timony as  to  facts  and  circumstances, 
its  admission  may  be  of  little  concern, 
121  111.  376. 

4.  As  to  a  judge's  liberal  discretion 
in  admitting  such  testimony,  see  117 
Mass.  122;  Glass's  Estate,  127  Iowa, 
646,   121   111.  376. 

5.  Cheatham  v.  Hatcher,  30  Giatt. 
56;  Fairchild  v.  Baseomb,  35  Vt.  398; 
Baxter  v.  Abbott,  7  Gray,  71;  Kemp- 
sey  V.  McGinnis,  21  Mich.  123;  Duf- 
field  V.  Morris,  2  Harring,  385;  Frary 
V.  Gusha,  59  Vt.  257,  9  A.  149.  An 
attending  physician,  who  is  also  a 
subscribing  witness  may  be  freely 
cross-examined.  Mullin,  Re,  110  Cal. 
252,  42  P.  645. 

6.  Brown  v.  Riggin,  94  111.  560.     In 


235 


§    205  LAW   OF  WILLS.  [PAET    II. 

§  205.  The  Same  Subject:   Medical  Experts,  etc. 

But  regarding  tJie  physician  or  psychologist  more  in  the  light  of 
an  expert  than  an  ordinary  witness  on  the  question  of  insanity,  the 
courts  treat  him  with  much  deference  in  testamentary  causes.  As 
an  expert,  one's  testimony  takes  a  much  wider  range ;  for  thus  his 
or  her  general  belief  as  to  whether  the  testator  was  sane  or  insane 
may  be  freely  elicited  without  being  confined  to  the  impressions 
derived  from  what  were  personally  witnessed ;  and  such  a  one  may 
express  a  professional  opinion  upon  the  facts  embodied  in  the  tes- 
timony of  other  witnesses  without  being  confined  to  matters  of 
one's  own  personal  observation. 

Insianity,  in  modem  times,  is  treated  in  asylums  and  by  phy- 
sicians who  make  a  specialty  of  this  malady.  Yet  the  knowledge 
of  faxjts  derived  by  the  physician  in  an  individual  case  under  his 
or  'her  professional  treatment  may  be  a  fair  offset  to  a  specialist's 
knowledge  acquired  elsewhere.  Great  respect  cjcrtainly  is  paid  by 
our  courts  to  the  opinions  of  all  educated  practicing  medical  men 
upon  subjects  of  medical  science;  for  even  in  Massachusetts,  where 
the  opinions  of  general  witnesses  have  been  so  sedulously  excluded, 
physicians  who  neither  attended  regularly  in  the  case,  nor  are  ex- 
perts on  the  subject  of  insanity,  have  been  allowed  to  express  their 
opinions  of  the  testator's  sanity,  from  the  fact  that  they  were 
called  in  professionally.''  That  one's  experience  was  less  than 
another's  of  the  profession  is  held  insufficient  ground  for  ruling 

Fairchild  v.  Bascomb,  35  Vt.  398,  it  under  his  spiritual  care,  especially  if 
seems  to  be  thought  that  a  nurse  in  he  had  made  a  preliminary  examina- 
regular  attendance  is  qualified  to  tion  to  test  her  sanity,  and  was  in 
testify  as  an  expert.  The  remark  is  the  constant  habit  of  applying  his 
a  careless  one;  for  no  such  qualifica-  studios  in  physiology  and  psychology 
tion  can  be  predicated  of  most  nurses.  to  test  the  mental  condition  of  those 
Yet  special  training  and  experience  who  confessed.  Toomes's  Estate,  54 
might  place  one  on  that  privileged  Cal.  509,  35  Am.  Kep.  83.  See  76 
footing;  and  schools  for  nurses  are  a  Mo.  314;  89  N.  Y.  S.  543  (senile  de- 
modern    ostablishmcnt.  mentia). 

Tlie  opinion   of   a  Roman    Catholic  7.  Baxter   v.    Abbott,   7   Gray,    71; 

priest  and  confessor  may  be  given  as  Hastings  v.  Rider,  99  Mass.  622. 
to  the  mental  fondition  of  a  testatrix 

23G 


CHAP.  IX.]    PROOF  OF  CAPACITY  AND  INCAPACITY. 


205 


them  O'U't;  the  difference  being  rather  in  the  weight  of  testimony 
than  the  competency  of  the  testimony.* 

In  general,  th.e  courts  have  refused  to  distinguish  between  differ- 
ent members  and  different  schools  of  the  medical  profession.  And 
they  appear  to  place  educated  and  practicing  physicians  generally 
upon  the  high  plane  of  medical  experts  in  testamentary  causes 
where  the  issue  of  mental  soundness  is  raised;  drawing  no  bold 
line,  as  it  would  seem,  between  specialists  on  this  subject  and 
others  of  regular  standing  in  the  profession,  but  leaving  it  rather  to 
tlie  good  sense  of  tJie  jury  to  sift  all  opinions  thus  expresised  as  well 
as  the  facts,  and  to  discriminate  as  circumstances  may  require.* 
The  aid  imparted  by  physicians  here  extends,  tharefore,  by  judicial 
consent  beyond  the  usual  range  of  opinions  ot  impressions  formed 
as  the  result  of  one's  actual  observation;  nor  in  practice  would  a 
professional  man  itireat  a  case  without  investigating  facts  and 
symptoims  related  by  others,  and  basing  his  opinion  upon  their 
nairrative  as  tested  by  his  own  judgment  and  personal  inspection. 


8.  Baxter  v.  Abbott,  7  Gray,  71, 
per  Thomas,  J. 

9.  Harrison  v.  Rowan,  3  Wash.  C. 
C.  580,  587;  Fairchild  v.  Bascomb, 
35  Vt.  398;  Baxter  v.  Abbott,  7 
Gray,  71;  Kempsey  v.  McGinniss, 
21  Mich.  123;  Tullis  v.  Kidd,  12  Ala. 
650;  Chamberlayne  Evid.  §  428;  Liv- 
ingston V.  Commonwealth,  14  Gratt. 
592;  Cheatham  v.  Hatcher,  30  Gratt. 
•56,  32  Am.  Rep.  650;  Duffield  v. 
Morris,  2  Barring.  385;  Potts  v. 
House,  6  Ga.  324;  Gibson  v.  Gibson, 
9  Yerg.  29. 

Many  other  cases  to  which  refer- 
ence is  sometimes  made  under  this 
general  head,  relate  to  issues  of  san- 
ity in  criminal  cases.  See  12  Ohio, 
'483.  But  testamentary  causes  in- 
volve peculiar  considerations,  and  our 
precedents  are  better  drawn  from 
controversies  over  wills.     Insanity  in 


crime  involves  the  question  of  moral 
responsibility;  and  there  are  late 
cases  which,  upon  such  an  issue,  con- 
sider physicians  who  have  not  made 
the  subject  of  mental  disease  a 
special  study,  incompetent  to  testify 
as  experts  upon  a  liypothetical  case. 
Commonwealth  v.  Rich,  14  Gray,  335. 
We  do  not,  however,  find  any  such 
rigid  doctrine  applied  in  testament- 
ary causes,  where,  as  a  matter  of 
fact,  however,  the  physicians  sum- 
moned have  usually  had  some  per- 
sonal experience  with  the  testator's 
case. 

In  Kempsey  v.  McGinniss,  21  Mich. 
123,  137,  the  court  treated  as  admis- 
sible in  evidence,  upon  the  question 
of  mental  soundness,  the  opinions  of 
several  professional  witnesses  who 
had  not  seen  the  testator  during  his 
illness. 


237 


g  207  LAW  OF  WILLS.  [PAET  IL 

Any  .responsible  opinion  imports,  in  truth,  wider  and  deeper  reach- 
ing for  facts  than  an  irresponsible  one/ 

§  206.  Expert  Testimony  Admissible  as  to  Facts  observed,  or 
hypothetically. 

The  opinion  of  an  expert  concerning  the  sanity  or  insanity  of 
a  testator  is  generally  admissible  so  long  as  its  grounds  are  ex- 
plained, whether  as  founded  upon  his  own  observation  and  exam- 
ination of  the  p'Htient,  or  upon  a  hypothetical  case  involving  the 
facts  which  the  evidence  in  the  case  appears  to  have  disclosed,  or 
as  the  combined  result  of  his  own  obsen'ation  and  the  other  testi- 
mony adduced  at  the  trial,^  And  his  opinion  may  be  based  upon  a 
defined  portion  alone  of  the  testimony^  provided  the  whole  testi- 
mony is  not  contradictory,  but  its  truth  expressly  assured,  and  the 
expert  is  first  made  acquainted  with  all  of  the  testimony  upon 
which  he  is  asked  to  pronounce.^ 

§  207.  The  Same  Subject:    Limitations  to  Such  Expert  Testi- 
mony, 
But  while  a  hypothetical  case  based  upon  the  facts  shown  in 

1.  Upon  the  testimony  of  medical  should  differ  materially,  as  to  the 
men  and  difference  of  opinion  among  ordinary  effects  of  certain  symp- 
them,  some  just  obbservations  are  toms,  the  jury  must  weigh  their  evi- 
made  by  Mr.  Justice  Washington  in  dence,  as  in  other  cases,  and  decide 
Harrison  v.  Rowan,  3  Wash.  C.  C.  according  to  the  opinion  they  may 
587:  "A  physician  may,  with  some  form  of  the  comparative  judgment, 
degree  of  accuracy,  form  an  opinion  learning,  and  experience  of  the  wit- 
of  the  nature  of  the  disorder,  and  its  nesses  themselves."  See  also  Kemp- 
probable  effect  upon  the  mind,  where  sey  v.  McGinnis,  21  Mich.  123,  on 
the  symptoms  are  truly  stated  to  tliis  subject  (remarks  of  Christian- 
him;   because,  from  a  long  course  of  cy,  J.). 

experience   and   observation,   by   him-  2.  Baxter  v.  Abbott,    7    Gray,    71; 

self  and  others  of  the  profession,  such  HeaUl    v.    Thing.    45    Me.    392,    and 

have    been    the    ordinary    etTects    of  autliorities    cited;     Kempsey    v.    Mc- 

these  symptoms.    But,  to  entitle  such  Ginniss,  21  Mich.  123;    121  111.   376, 

opinions  to  the  regard  of  a  jury,  they  12  N.  E.  267;   142  Ind.  194,  41  N.  E. 

sliouhl  be  satisfied  by  the  other  ovi-  523;  Bever  v.  Spangler,  93  Iowa  576, 

dence  in  the  cause  that  the  symptoms  61  N.  W.  1072. 

did  exist  in  the  particular  case  under  3.  Yardley     v.      Cutlibertson,      108 

consideration.      And    if    the    opin  oris  Penn.  St.  395,  56  Am.  Rep.  218. 
of      these      professional      gentlemen 

238 


CHAP.  IX.]    TKOOF  OF  CAPACITY  AND  INCAPACITY.        §  207 

evidence  may  thus  be  submitted  to  a  medical  expert  for  his  opinion^ 
it  is  held  that  expert  opinions  as  to  sanity  based  on  hypothetical 
facts  not  appearing  to  exist  in  the  given  case  are  not  admissible ;  * 
and  should  the  jury  fail  to  find  certain  manifestations  testified  to 
as  facts,  they  should  reject  whatever  opinions  were  based  upon 
them.^  ]^or  does  a  hypothesis  framed  from  a  narrow  range  of 
facts  offer  ground  for  expert  opinions  of  real  value."  Further- 
more, an  expert  cannot  be  allowed  to  give  his  opinion  based  partly 
upon  his  own  observation  and  examination  of  the  patient^  and 
partly  upon  the  unsworn  representations  of  others,  whose  accuracy 
he  has  not  tested  for  himself.^  Nor  can  he  give  an  opinion  which 
involves,  on  his  part,  the  weighing  of  collateral  testimony.^ 

As  for  medical  testimony  to  facts  observed,  any  physician  who 
gives  an  opinion  based  upon  his  personal  experience  with  the  case 
ought  to  detail  the  facts  of  such  experience,  as  examination  or  cross- 
examination  may  suggest.'  An  expert  may  state,  even  on  his  ex- 
amination in  chief,  the  grounds  of  the  opinion  expressed  by  him 
and  the  reasons  for  it.^  And  whether  the  physician  or  expert  tes- 
tifies to  facts  and  appearances  founded  upon  his  own  personal  ob- 
servation and  acquaintance  with  the  patient  or  upon  a  hypothetical 
case  framed  from  the  testimony  adduced  at  the  trial,  the  facts,, 
symptoms,  or  appearances  upon  which  his  opinion  is  founded  ought 
to  be  distinctly  drawn  out,  for  upon  this  presentation  depends, 
its  intrinsic  value.^  After  all,  a  mere  expert  opinion  touching 
a  question  of  testamentary  capacity  is  entitled  to  very  little  weight 
in  comparison  with  proof  of  facts  and  circumstances  founded  in 
personal  observation,  which  carry  their  own  inference.^ 

4.  Ames,  Re,  51  Iowa,  596;  49  sey  v.  McGinniss,  21  Mich.  123' 
Iowa,   76.  1.  Collier  v.  Simpson,  5  C.  &  P.  73; 

5.  Kempsey  v.  McGinniss,  21  Mich.  Keith  v.  Lothrop,  10  Cush.  453; 
123.  Heald  v.  Thing,  45  Me.  397. 

6.  Andrews,  Re,  33  N.  J.  Eq.  514.  2.  Heald    v.    Thing,    45    Me.    392; 

7.  Wetherbee  v.  Wetherbee,  38  Vt.  Clark  v.  State,  12  Ohio,  483,  40  Am. 
254;   Heald  v.  Thing,  45  Me.  392.  Dec.   481;    Gibson  v.   Gibson,   9  Yerg. 

8.  Kerr  v.  Lunsford,  31  W.  Va.  659.  329;  Clary  v.  Clary,  2  Ired.  78.     But 

9.  Hastings  v.  Rider,  99  Mass.  622;  cf.  Stubbs  v.  Houston.  33  Ala.  5'5. 
Gibson  v.  Gibson,  9  Yerg.  29;  Kemp-  3.  See  Burley  v.  IMcGough,  115  IlL 

239 


208 


LAW  OF  WILLS. 


[part   II. 


§  208.  To  what  Time  Opinion  of  Witness  relates;  does  not  ex- 
tend to  Legal  Capacity,  etc. 
The  opinion  of  any  competent  witness  as  to  the  testator's  sanity 
should  relate,  on  the  whole,  to  the  itime  of  the  execution ;  and  as 
the  earlier  impressions  he  may  have  conceived  in  this  respect  have 
only  a  secondary  bearing  upon  the  case,  they  should  not  be  drawn, 
out  upon  a  direct  examinaition.^  There  is,  however,  a  recent  Mas- 
sachusetts case  which  takes  a  different  view.'  ISTot  should  the  wit- 
ness be  asked  his  opinion  whether  'the  testator  was  competent  to 
make  a  will ;  for  such  an  inquiry  involves  matter  of  law  as  well  as 
fact,  upon  which  the  court  may  reserve  its  instructions;  but  the 
simpler  inquiry  relates  to  mental  soundness  or  unsoundness,  with 
reference,  as  near  as  may  be,  to  ithe  particular  act  or  kind  of  act 
in  dispute,  and  as  the  result  of  personal  knowledge  and  observa- 
tion.^ 


11,  3  X.  E.  738;  Hall  v.  Perry,  87 
Me.  570,  33  A.  160;  64  A.  520,  215 
Penn.  314;  61  N.  Y.  S.  910;  80  N.  Y. 
S.  1011. 

All  such  testimony  should  be 
sworn,  and  mere  medical  certificates 
unsworn  are  inadmissible.  Keely  v. 
:M'oore,  25  S.  Ct.  169,  196  U.  S.  28, 
49   L.  Ed.   376. 

4.  Runyan  v.  Price,  15  Ohio  St.  1, 
86  Am.  Dec.  459.  But  where  the  lo- 
cal practice  forbids  the  witness  (a 
general  one)  to  testify  upon  the  point 
of  mental  soundness  or  unsoundness 
at  all,  he  is  only  to  state  facts  to- 
gether with  the  impression  they  pro- 
duced upon  him  at  the  time  of  exe- 
cution, by  way  of  giving  them  the 
additional  weight  of  his  conviction. 
Clapp  V.  Fullerton,  34  N.  Y.  190,  90 
Am.  Dec.  681.  Semble  a  change  of 
convictirn  by  the  time  of  the  trial 
would  be  materia!  in  prnof  in  sucii  a 
case.     And  see  87  Me.  578,  33  A.  160, 


5.  Williams  v.  Spencer,  150  Mass. 
346;  15  Am.  St.  Rep.  206,  23  N.  E. 
105. 

6.  Cf.  Runyan  v.  Price,  ib.;  Fair- 
child  V.  Bascomb,  35  Vt.  398;  Beau- 
bien  v.  Cicotte,  12  Mich.  459;  Will^in- 
son  V.  Pearson,  23  Penn.  St.  117.  Ca- 
pacity to  make  a  will,  or  what  in  any 
case  shall  be  the  standard  of  legal 
capacity,  is  always  a  question  of  law. 
The  physical  or  mental  condition 
from  which  that  capacity  may  be  de- 
duced, is  a  question  of  fact,  which 
may  be  shown  hj  evidence  of  physical 
or  mental  manifestations  and  the 
opinions  of  professional  witnesses  as 
inferences  of  fact  thereon.  There  has 
been  some  looseness  in  the  couits  in 
permitting  opinions  to  be  given  upon 
a  testator's  capacity,  by  professional 
witnesses  and  others,  but  that  mode 
of  putting  the  question  is  objeetion- 
able.  Kempsey  v.  McGinniss,  21  Mich. 
123,  per  Christiancy,  J.,  143. 


240 


CHAP.  IX.]    PROOF  OF  CAPACITY  AND  INCAPACITY.        §  209 

§  208.  The  Issue  of  Sanity  is  not  to  be  concluded  upon  Mere 
Opinions;  General  Conclusions. 

On  tlie  whole,  the  issue  of  mental  soundness  or  unsoundness  is 
not  to  be  decided  upon  the  mere  opinions  of  witnesses,  however 
nume-rous  and  respectable,  but  each  opinion  should  be  tested  by  the 
facts  in  the  case,  in  order  to  judge  of  its  probable  correotnees.^  It 
is  not  the  o-pinion  of  witnesses  upon  which  reliance  is  placed  by  the 
triers  of  the  case ;  but  from  the  premises  which  supplied  the  con- 
viction in  the  minds  of  the  several  witnesses,  the  court  or  jury, 
aided  by  these  opinion®,  and  by  the  maxims  of  law,  musit  form  its 
own  independent  conviction  and  decide  accordingly.^  Nor  is  there 
good  ground  for  saying  absolutely  that  one  class,  of  witnesses  who 
testify  in  the  case  should  be  more  relied  upon  than  another.^  True 
is  it  that  those  whose  facilities  for  observation  and  judgment  were 
the  greatest  furnish  naturally  the  most  valuable  assistance;  and 
hence,  where  medical  men  disagree  in  their  conclusions,  the  opinion 
of  the  attending  physician  should  usually  carry  the  most  weight.^ 
And  among  laymen  no  witnesses  are  so  highly  favored  as  the  sub- 
scribing witnesses ;  for  these  were  present  at  the  very  act,  wera 
trusted  by  the  testator  to  speak  for  ihim,  and  assumed  a  respon- 
sibility in  the  premises  which  no  one  is  supposed  to  esteem  too 
lightly.^  But  these  considerations,  even  though  existing  in  full 
force,  may  be  offset  by  others,  such  as  bias,  the  degree  of  intelli- 
gence and  skill,  character  for  truth  and  veracity,  strength  of  mem- 
ory, soundness  of  judgment;  and  all  testimony  offered  in  the  case, 
whether  for  or  against  the  wall,  should  be  weighed  in  the  balance 
and  carefully  compared.^ 

7.  Turner    v.    Cheesman,    15    N.    J.  2.  Harrison  v.  Rowan,  supra. 

Eq.  243.  3.  The  cases  which  discuss  or  com- 

8.  lb  ;  Garrison  v.  Garrison,  15  pare  the  testimony  offered  upon  the 
N.  J.  Eq.  266;  Eddey's  Appeal,  109  issue  of  a  testator's  sanity  are  very 
Penn.  St.  406.  numerous.       Among     them     may     be 

9.  Brown  v.  Riggin,  94  111.  560.  mentioned      Billings's      Appeal,      49 
1.  Harrison  v.  Rowan,  3  Wash.  C.      Conn.   456,  where  testimony  required 

C.   587;     Cheatham    v.    Hatcher,    30      a  reading  of  details;  Draper's  Estate, 

Gratt.  56;  Kempsey  v.  McGinniss,  21       64   A.    520,    215   Penn.   314. 

Mich.   123.  In  Sutton  v.  Morgan,  30  N.  J.  Eq. 

16  241 


210 


LAW  OF  WILLS. 


[part     II. 


§  210.  Expert  Testimony  further  considered;  Books  of  Medical 
Science,  etc. 

A  few  words  may  be  added  more  generally  upon  the  subject  of 
expert  testimony  in  causes  where  a  testator's  mental  capacity  is 
at  issue,  concerning  books  of  medical  science  or  other  professional 
works  relating  ito  insanity.     The  usual  rule  is  that,  while  such 


629,  the  evidence  of  three  out  of  four 
disinterested  subscribing  witnesses 
to  a  will,  the  fourth  being  dead,  was 
held  to  outweigh  that  of  ten  other 
witnesses,  all  of  whom  were  related 
to  the  testator  either  by  blood  or 
affinity;  the  fact  also  appearing  that 
the  testator's  attending  physician, 
although  subpoenaed  by  the  caveators 
and  present  at  the  trial,  was  not  put 
upon  the  stand. 

This  whole  subject  of  testimony 
upon  the  point  of  mental  soundness 
is  clearly  and  thoughtfully  discussed 
in  Turner  v.  Cheesman,  15  N.  J.  Eq. 
243.  where  six  propositions  are  stated 
as  the  result  by  way  of  a  summary: 
1.  The  point  of  time  upon  which  the 
judgment  of  the  court  turns  is  that 
of  the  execution  of  the  instrument; 
and  evidence  of  the  testator's  state  of 
mind,  before  and  after,  although 
a/dmissible,  will  weigh  more  or  less, 
according  to  circumstances.  2.  The 
subscribing  witnesses,  and  their 
opinions  and  the  facts  they  state,  as 
occurring  at  the  time,  are  to  be  par- 
ticularly regarded  by  the  court. 
3.  The  testimony  of  the  opinion  of 
witnesses,  not  subscribing,  as  to  the 
testator's  capacity,  are  to  be  received 
as  the  sliglitest  kind  of  evidence,  ex- 
cept 80  far  as  tliey  are  based  on  facts 
and  oc'ourrenccs  wiiich  are  de- 
tailed beiore  the  court.  4.  The 
mere      fiiet      of      a      witness      sub 


scribing  the  will  does  not  entitle  his 
opinion  to  any  special  weight.  5.  If 
a  stranger  to  the  testatoi,  his  opin- 
ion is  of  much  less  weight  than  that 
of  another  witness,  who  had  long  been 
familiar  with  the  character  and  hab- 
its of  the  testator  about  the  time 
when  the  will  was  executed.  6.  The 
opinion  of  no  witness  will  command 
much  respect  unless  fortified  by  sat- 
isfactory observation  and  reasons. 
These  propositions  are  all  sound  and 
sensible,  and  Judge  Redfield  ( 1  Redf. 
Wills,  142,  note)  considers  them  ex- 
ceedingly satisfactory. 

In  Beaubien  v.  Cicotte,  12  Mich. 
459,  the  court  lays  much  stress  upon 
the  importance  of  testimony  founded 
in  personal  observation,  wherever  the 
question  relates  to  a  testator's  san- 
ity. •'  If  witnesses,"  it  is  here  ob- 
served, "  were  not  compellable  to 
state  such  facts  as  are  tangible, 
there  would  be  no  means  of  testing 
their  truthfulness.  When  they  state 
visible  and  intelligible  appearances 
and  acts,  others  who  had  the  same 
means  of  observation  may  contrad  ct 
them,  or  show  significant  and  explan- 
atory facts  in  addition;  and  if  tlieir 
story  is  fabricated,  or  if  they  de- 
scribe facts  having  a  medical  explana- 
tion, medical  experts  may  detect 
falsehood  in  inconsistent  symptoms, 
or  determine  how  far  tlie  symptoms 
truly  given  have  a  scientific  bearing." 


242 


CHAP.  IX.]    PROOF  OF  CAPACITY  AND  INCAPACITY.         §  210 

books,  if  not  objected  to,  may  be  read  in  icourt,  either  as  part  of 
the  testimony  or  in  the  course  of  argument,  they  are  liable  to  mis- 
lead, and  cannot,  upon  objection,  be  read  either  to  court  or  jury.^ 
But  in  some  Staites  the  court  has  discretion  to  admit  or  exclude 
such  testimony ;  ^  and  local  legislation  explicit  on  this  point  may 
be  found.®  There  seems  no  reason,  at  all  events,  why  a  medical 
expert  may  not  show  that  his  opinion  in  the  case  is  founded  partly 
upon  books;  for  this  holds  true  of  all  professional  knowledge.^ 
Whether,  however,  particular  books  on  a  given  subject  are  standard 
ones  and  trustworthy,  or  itbe  contrary,  is  a  vital  question,  not  always 
easy  to  determine.  Reference  to  other  cases  rather  than  other 
opinions  seems  less  objectionable ;  ^  for,  to  quote  Chief-Justtice  Tin- 
dal,  "  physic  depends  more  on  practice  than  law ;  "  ®  and  the  facts 
which  go  to  establisih  insanity  lie  within  the  range  partly  of  com- 
mon observation  and  partly  of  medical  or  special  experience.^  But 
the  fundamental  objection  to  admitting  medical  works  or  reports 
at  a  trial  appears  to  consist  in  the  circumstance  that  courts  and  the 
legal  profession  bring  no  critical  knowledge  or  experience  to  bear 
upon  their  contents,  nor  have  they  opportunity  to  test  the  authority 
of  the  book  by  putting  the  writer  upon  the  stand,  but  must  confide 

4.  McNaghten's  Case,  10  CI.  &  F.  to  other  cases  in  his  own  experience 
200;  1  Redf.  Wills,  146;  Washburn  as  illustrative  of  the  case  before  the 
V.  Cuddihy,  8  Gray,  430;  Common-  court.  Parker  v.  Johnson,  25  Ga. 
wealth  V.  Sturtivant,  117  Mass.  122;  576,  584.  But  he  cannot  give  his 
Harris  v.  Panama  R.,  3  Bosw.  (N.  opinion  upon  the  previous  opinions 
Y. )  7;  Davis  v.  State,  38  M'd.  15;  of  other  experts.  Walker  v.  Fields, 
Fowler  v.  Lewis,  25  Tex.  380;  Car-  28  Ga.  237.  And  in  reference  to 
ter  V.  State,  2  Ind.  617.  cases   not  of  his  own   experience  but 

5.  Standenmeier  v.  Williamson,  29  related  in  books,  the  question  arises 
Ala.  558;  Luning  v.  State,  1  Chand.  Avhether  they  are  correctly  and  fully 
264 ;  Melvin  v.  Easley,  1  Jones  Law,  narrated. 

386.  See    Richmond's   Appeal,    59    Conn. 

6.  The  Iowa  code  makes  books  of  226,  where  counsel  was  restrained 
science  and  art  admissible.  Brod-  from  reading  to  the  jury  from  a 
head  v.  Wiltse.  35  Iowa,  429.  standard   book  on  wills   in   course   of 

7.  Collier  v.  Simpson,  5  C.  &  P.  74;  his  argument. 

iState  V.  Terrell,  12  Rich.  321;  1  Redf.  9.  Collier  v.  Simpson,  5  C.  &  P.  74. 

Wills,  146.  1.  See  Smith  v.  Tibbitt,  L.  R.  1  P. 

8.  An  expert,  it  is  held,  may  refer      &  D.  354,  398. 

243 


§    212  LAW  OF   WILLS.  [PAKT    H. 

altx)'gether  in  mere  expert  opinion,  and  thus  open  a  boundless  field 
for  collateral  inquiry. 

§  211.  Competency  and  Value  of  Expert  Opinion. 

The  general  competency  of  a  person  to  testify  as  an  expert  is 
for  the  judge  presiding  at  the  trial  to  determine.^  And  to  quote 
from  Chief- Justice  Shaw,  "  the  value  of  such  testimony  will  de- 
pend mainly  upon  the  experience,  fidelity,  and  impartiality  of  the 
witness  who  gives  it;  "  ^  its  design  being  to  aid  the  judgment  of 
the  triers  of  a  case  in  regard  to  the  influence  and  effect  of  certain 
facts  which  lie  out  of  the  observation  and  experience  of  persons 
in  general.^  I^o  jury  should  give  more  weight  to  expert  opinions, 
than,  in  deciding  the  case  on  the  whole  testimony,  they  think  such 
opinions  fairly  merit.^ 

§  212.  In  What  Manner  Questions  should  be  put  to  an  Expert. 

There  is  considerable  discussion  as  to  the  manner  in  which  ques- 
tions should  'be  put  to  an  expert ;  but  no  positive  formula  can  be 
said  to  apply  exclusively  to  such  testimony.  The  great  practical 
difiiculty  is  to  avoid  apparent  conclusions  of  fact  where  the  evi- 
dence in  the  case  is  complicated  or  conflicting ;  while  the  practical 
object  is  to  obtain  from  the  witness  the  instruction  he  is  qualified 
to  impart  as  clearly  and  naturally  as  possible.  Various  forms  of 
questions  which  have  been  put  forward,  not  as  an  exclusive  for- 
mula, but  rather  by  way  of  example,  should  be  considered  accord- 
ingly. ''  The  object  of  all  questions  to  experts,''  it  is  well  said, 
''  shouldj  be  to  obtain  their  opinion  as  to  the  matter  of  skill  or 
science  which  is  in  controversy,  and  at  the  same  time  ito  exclude 
their  opinions  as  to  the  effect  of  the  evidence  in  establishing  con- 
troverted facts.     Questions  adapted  to  this  end  may  be  in  a  great 

2.  Hoalii  V.  Tiling,  45  Me.  397;  117  4.  lb. 

Mass.  122,  19  Am.  Rep.  401;    Board-  5.  Watson    v.     Anderson,     1,3    Ala- 

man  V.  Woodman,  47  N.  IT.  120;  Clay      202;  Meeker  v.  Meeker,  74  Iowa,  352, 
V.  Clay,  2  Ired.  78.  7  Am.  St.  Rep.  489. 

3.  Commonwealth  v.  Rogers,  7  Met. 
600-505,  41   Am.   D(  e.  458. 

244 


CHAP.    IX.]         PItOOF   OF    CAPACITY   AND    INCAPACITY.  §    213 

variety  of  forms.  If  they  require  tlie  wiitiiess  to  draw  a  conclu- 
sion of  fact,  tlicy  sliould  be  excluded.  But  where  the  facts  stat^id 
are  not  complicated,  and  the  evidence  is  not  contradiotory,  and  the 
terms  of  the  question  require  the  witness  to  assume  that  the  facts 
stated  are  true,  he  is  not  required  to  draw  a  conclusion  of  fact."  ® 

§  213.  General  Conclusion  as  to  Expert  Testimony. 

Judge  Redfield  comments  with  severity  upon  the  oonflicting  char- 
acter of  testimony  which  comes  from  experts;  its  often  onesided 
and  partisan  character;  and  above  all,  the  tendency  of  the  most 
mature  and  well-balanced  minds  to  run  into  the  most  incompre- 
hensible theorizing  and  unfounded  dogmatism,  from  the  exclusive 
devotion  of  study  to  one  subject,  and  ithat  of  a  mysterious  and 
occult  character.^  This  reference  is  doubtless  a  general  one  to 
cases,  civil  or  criminal,  which  involve  some  issue  of  insanity ;  and 
to  thiat  sort  of  testimony,  more  purely  expert,  which  consists  in 
framing  conclusions  upon  some  hypothetical  case  where  the  facts 
were  observed  by  oithers.  So  far  as  testamentary  causes  are  con- 
ce^med,  where  the  validity  of  some  will  offered  for  probate  turns 
essentially  upon  the  point  of  a  decedent's  mental  capacity,  and 
leaving  out  of  consideration  those  whose  present  insanity  may  still 
be  submitted  to  the  crucial  test  of  personal  inspection,  very  little 
reliance,  certainly,  should  be  placed  in  the  mere  theorizing  of  ex- 
perts, as  compared  with  the  practical  knowledge  treasured  up  by 
those,  professional  or  unprofessional,  who  have  been  familiar  w^ith 

6.  Chapman,  J.,  in  Hunt  v.  Lowell  United  States  v.  McGliie,  1  Curt.  C. 
Gas  Light  Co.,  8  Allen,  169,  172,  85  C.  1.  Various  instances  where  the 
Am.  Dec.  697.  See  as  to  one  form  of  question,  as  put,  required  the  wit- 
putting  the  question  hypothetically,  ness  to  draw  a  conclusion  of  fact,  are 
well  adapted  to  cases  where  the  facts  to  be  found  in  the  reports.  E.g.  Sills 
are  complicated  or  conflicting,  Wood-  v.  Brown,  9  0.  &  P.  601.  And  see 
bury  V.  Obear,  7  Gray,  467.  Latitude  Kempsey  v.  McGinniss,  21  Mich.  123 ; 
is  allowed  where  the  evidence  leaves  Crowell  v.  Kirk,  3  Dev.  (Law)  355; 
the  facts  clear.  Hunt  v.  Lowell  Gas  Fairchild  v.  Bascomb,  25  Vt.  398;  1 
Light  Co.,  supra;  M'Naghten's  Case,  Redf.  Wills,  148-152. 
10  €1.  &  F.  200;  Commonwealth  v.  7.  1  Redf.  Wills  154. 
Rogers,  7  Met.  500,  41  Am.  Dec.  458; 

245 


§    213a  LAW  OF  WILLS.  [pAJiT    II. 

the  words,  idiosyncrasies,  and  individual  traits  of  one  whose  mind 
must  be  weighed  from  memory;  not  only  for  the  reason  that  psy- 
chology is  a  mysterious  and  occult  science,  while  the  minds  of 
different  human  beings  stamp  an.  impression  as  distinct  though 
not  as  distinguishable  as  their  faces,  but  because,  from  the  very 
nature  of  the  case,  it  has  become  impossible  to  reproduce  distinctly 
at  the  trial,  before  expert  or  jury,  all  the  facts,  the  symptoms,  the 
phenomena,  upon  which  expert  testimony  may  be  safely  based 
where  personal  acquaintance  was  wholly  wanting.  Particularly 
must  ithis  hold  true  in  those  numerous  instances  where  the  instru- 
ment was  drawn  up  and  signed  at  tbe  last  stage  of  life  and  in  the 
sick-chamber,  where  the  soul  wrestled  with  the  body,  and  the  vital 
currents,  mental  and  physical,  turned  at  feeble  and  fitful  intervals. 
At  such  a  crisis  of  life,  symptoms  and  surroundings  may  have  a 
direct  bearing  upon  the  validity  of  the  transaction,  far  beyond  any 
theoretical  considexation  whether  tbe  testator  bad  or  had  not  the 
modicimi  of  reason  sufficient  for  the  act. 

§  213a.  Final  Observations:  Proof  of  Sanity  and  Due  Execu- 
tion: Effect  of  Probate,  Costs,  etc. 
A  court  in  ruling  on  questions,  such  as  this  chapter  has  dis- 
cussed, should  be  careful  neither  to  mislead  a  jury,  nor  to  show  an 
undue  bias  favorable  or  unfavorable  to  the  will ;  and  even  propo- 
sitions abstractly  correct  may  be  so  stated  as  to  have  an  injurious 
effect.  But  a  ruling  sufficiently  favorable  to  those  defeated  in  the 
contest  is  not  a  proper  subject  of  exception  even  though  it  may  have 
been  somewhat  inaccurate.  The  final  probate  of  a  will  establisihes 
the  capacity  of  the  testator;  and  evidence  is  not  admissible  to  tlie 
contrary  on  other  dispu'tos  raised  in  the  course  of  settling  the  es- 
tate; all  original  appeal,  if  any,  having  boon  previously  disposed 

8.   Baptist    Tonvontion    v.    Ladd,    50  Wis.   501,   136  N.  W.  956    (the  inter- 

Vt.   5;    Sfhoulcr   Expcutors,   Part   II.  ested    parties    cannot    by    agreement, 

c.  2   (Vol.  II).     See  101  N.  Y    S.  313  substitute    a    different    will    for    pro- 

(code)  ;    Cowne    v.    Strohm'yer,    150  bate  from  that  of  the  testator). 

24G 


CHAP.  IX.]    PROOF  OF  CAPACITY  AND  INCAPACITY.        §  213a 

It  follows  from  the  discussion  of  this  chapter,  tliat  the  due  exe- 
cutio'ii  of  a  will,  or  the  mental  capacity  of  the  testator,  may  be 
judicially  established  in  proof  by  other  persons  (than  the  attesting 
witnesses ;  and  that  the  evidence  of  any  attesting  witness  impeach- 
ing the  will  to  which  he  has  not  subscribed  ought  to  be  received 
with  much  caution.' 

Costs  in  contesting  a  will  on  the  ground  of  incapaciity  in  the  tes- 
tator have  been  charged  by  the  court  of  probate  upon  the  estate, 
where,  notwithstanding  upon  full  proof  the  will  should  stand,  tliere 
were  strong  justifying  circumstances  for  raising  the  controversy.^ 

9.  The  court  may   direct  a  verdict  full  sense,  though  ordered  to  be  paid 

of    the   jury    sustaining    the    will,    if  out  of  the  testator's  estate.     Prince, 

there  is  no  evidence  whatever  tending  Re   (1898),  2  Ch.  225. 

to    show    incapacity    in    the   testator.  The  burden  to  show  incapacity,   in 

44  Ohio  St.  59.  an    eflfort    to    overcome    a    favorable 

1.  Frost  V.   Wheeler,  43  N.  J.   Eq.  finding  by  judge  and  jury  once  made, 

573,   12   A.   612.     Yet  the  costs  of  a  vests  fairly  upon  the  contestant.     See 

successful  action  impeaching  the  val-  Austin  v.  Austin,  103  N.  E.  268,  260 

idity   of   a   will,   are   not   to   be   con-  111.   299;    Brough   v.  Parry,   144   Ind. 

sidered  testamentary  expense,  in  the  263. 

247 


§    215  LAW  OF  WILLS.  [PAET    II. 


CHAPTER  X. 

EEEOE,    FEAUD,   AND   UNDUE   INFLUENCE. 

§  214.  Error,  Fraud,  and  Undue  Influence  remain  to  be  consid- 
ered in  Connection  with  Testamentary  Capacity. 
We  have  sufficiently  discussed  the  subject  of  testamentary  capac- 
ity and  incapacity,  in  its  more  obvious  bearings,  where  legal  dis- 
ability or  the  quantum  of  intellect  indispensable  to  the  transaction 
demands  consideration.  But  there  remain  final  topics  under  the 
same  general  head,  to  which  our  attention  should  now  be  directed ;. 
not  referable,  perhaps,  with  logical  exactness,  to  testamentary  ca- 
pacity, and  yet  closely  associated  with  that  subject,  more  especially 
in  cases  whose  evidence  shows  th<at  (the  alleged  testator  was  of  weak 
or  doubtful  mental  capacity.  Wherever,  indeed,  the  issue  devi- 
savit  vel  non  is  presented  for  adjudication,  other  elements,  though 
not  necessarily  put  in  controversy,  are  involved  in  the  ultimate  de- 
cision, besides  that  of  mental  soundness,  or  sufficiency  of  intellect. 
Namely,  was  this  identical  instrument  in  its  integrity  one  upon 
which  tliat  intellect  operated  with  a  testamentary  purpose,  or  was 
it  not  ?  and  again,  did  or  did  not  that  intellect  produce  the  will  in 
question  freely  and  without  fraud  or  undue  external  pressure  ? 
For  if  the  instrument  was  not  what  the  alleged  testator  intended 
to  execute  as  his  will,  it  should  be  refused  probate;  and  so,  too^ 
if  his  intellect,  though  not  actually  unsoiund,  was  used  by  artifice 
or  force  to  make  the  will  as  some  one  else  had  contrived  it  for  him. 
Let  us  then  consider  these  final  topics  under  our  present  head : 
Error,  Fraud,  and  Undue  Influence. 

§  215.  Fundamental  Error  vitiates  a  Will;  Effect  of  Partial 
Errors, 
Of  fundamental  error  in  a  will,  disconnected  with  fraud  prac- 
tisc^d  by  others,  it  is  difficult  to  conceive;  and  still  more  so  of  a 
fundamental  error,  due  to  the  tesitator's  carelessness  and  fault  alone. 
But  such  a  case  is  sup'posable ;  as  wheire,  for  instance,  two  instru- 
ments, similar  in  general  appearance,  were  drawn  up,  the  one  a 

248 


CHAP.    X.]  EEEOR^  FJKAUD,  AND  UNDUE  INFLUENCE.  §    215 

deed  or  private  memorandum,  and  the  other  a  will,  and  the  testator 
hastily  executed  the  wrong  one;  or  where  two  wilb  were  drafted 
for  different  persons,  and  one  party  signed  that  which  was  intended, 
for  the  oth,er;  ^  though  it  would  certainly  be  strange  if  under  such 
ciroumisitances  witnesses  attested,  the  instrument  was  filed  away, 
and  the  error  was  neither  discovered  nor  rectified  before  the  tes- 
tator's deathi.  Here  would  be  a  palpable  error ;  and  if  the  testator, 
being  illiterate,  blind,  or  very  feeble,  had  depended  upon  some 
scrivener,  attorney,  or  attendant  in  the  transaction,  the  latter  would 
be  greatly  to  blame  in  the  business.  We  may  assume  that  a  pal- 
pable and  fundamental  error  like  this  would  defeat  the  probate. 
Of  course,  there  might  be  an  instrument  presented  for  probate 
which  was  simply  a  forgery  and  not  a  genuine  testament  ait  all.^ 
Partial  errors  occur  more  naturally ;  and  here  the  mistake,  if 
an  honest  one,  would  consist  usually  in  .some  misunderstanding 
between  the  testator  and  his  scrivener  or  attorney,  whereby  the  will 
as  drawn  up  and  executed  contained  one  or  more  words,  claus-es, 
or  senitences,  which  changed  essentially  certain  provisions  of  tlie 
will  from  what  the  testator  is  sbown  to  have  intended.  Errors  of 
this  kind,  as  where  a  legatee's  name  is  stated  incoiTectly,  are  some- 
times so  patent  from  the  context  as  to  be  easily  rectified ;  but  ithe 
mistake  might  be  a  graver  and  le«®  obvious  one,  as  where  a  legacy 

2.  The    author,    since    writing    the  Meyer's    Estate,    P.    D.     (1908)     353. 

above,  finds  a  recent  English  case  of  See  also  Alter's  Appeal,  67  Penn.  St. 

precisely  this  description.     Two  wills,  341,    5   Am.   Rep.    433    (husband   and 

so  similar  in  language  and  character  wife).      The    legislature    cannot    spe- 

that  one  might  have  read  and  served  cially   rectify   such   mistakes.      lb. 

for  the  other,  except  for  one  or  two  Where  a  will  is  executed  in  dupli- 

words  which  the  court  was  asked  to  cate    for    the    testator's    convenience, 

treat  as  a  mere  misdescription,  were  that  fact  may  be  shown,  and  probate 

prepared     for     two     maiden     sisters.  will  not  be  permitted   so   as   to  give 

The    testatrix    in    question    executed  legatees    a    double    advantage.      Hub- 

the  will  prepared  for  her  sister.    The  bard   v.    Alexander,    L.    R.    3    Ch.    D. 

court  held  that  the  deceased  did  not  738.     And  see  Nosworthy's  Goods,   4 

know  and  approve  of  the  contents  of  S.  &  T.  44. 

the  instrument  she  executed,  and  re-  3.  See  Kennedy  v.  Upshaw,  64  Tex., 

fused   probate   of    it.      Himt's    Goods,  411;  §  241. 
L.  R.  3  P.  &  D.  250   (1875).     And  see 

249 


§  215a  LAW  OF  WILLS.  [part  11. 

intended  foir  five  thousand  dollars  was  written  out  as  for  five  hun- 
dred; and  various  essential  errors  of  one  description  or  another 
might  be  supposed  to  result  from  the  scrivener's  misapprehension 
of  his  instructions.  All  such  essential  errors,  should  they  be 
claimed  to  exist,  require,  at  all  events,  to  be  proved ;  and  upon  this 
point  the  counsel's  or  scrivener's  testimony,  and  the  production  of 
his  \\Tititen  notes  or  instructions  may,  if  admissible,  be  decisive  of 
the  real  facts.  Hexe,  once  more,  it  is  conceivable  that  the  testator 
himself  was  the  sole  parity  in  error ;  and  a  comparison  of  the  will 
with  his  own  draft  or  his  declarations,  if  admissible,  might  estab- 
lish  that  a  slip  of  the  pen,  and  not  his  change  of  purpose  at  the 
last  moment,  produced  a  will  essentially  different  on  its  face,  in 
one  or  more  respects,  from  what  he  really  or  perhaps  manifestly 
intended.  A  partial  or  corrected  probate  of  the  will,  as  justice 
and  equity  may  require,  is  an  ideal  remedy  for  this  state  of  things  ; 
and  woirds  or  clauses  unintentionally  omitted  might  thus  be  sup- 
plied, or  those  intentionally  inserted  might  be  stricken  out,  in  order 
that  the  will  should  stand  of  record  as  the  testator  actually  in- 
tended. 

Our  law  does  not  favor  avoiding  a  solemn  will,  upon  any  sug- 
gestion of  mere  mistake  or  misinformation  regarding  any  expect- 
ant beneficiary  of  his  bounty,  especially  when  the  testator's  opinion 
was  not  apparently  a  pen^erse  one;  nor  because  of  other  irrelevant 
mistakes  of  the  testator,* 

§  215a.  An  Instrument  not  bona  fide  testamentary  refused  Pro- 
bate. 
A  "  fake  will,"  so-called,  not  intended  as  a  bona  fide  tcstamcnt- 

4.  IIG  Cal.  304,  637;  Jones  v.  Gro-  gave  the  residue  where  he  felt  no  in- 

gan,  98  Ga.  552.     As  to  insane  delu-  tcrest,     supposing     his     specific     be- 

Bion,  of.  §§   146-162.     That  the  tista-  quosts    would    exliaust    the     estate), 

tor  wholly   mistook  the  extent  of  his  Cf.  Hall  v.  Perry,  87  Me.  569,  33  A. 

estate  is  not  cause  for  refusing  pro-  160;  85  N.  Y.  S.  294;  Alexander's  Es- 

bate     or    concluding    him    incapable.  tatc,  55  A.  797,  206  Penn.  47;  31  So. 

HolmeB   V.   Campbell   College,    125    P.  64,    106    La.    442    (name   of    testator 

25,  87  Kan.  597,  41  L.  R.  A.    (N.  S.)  spelled    wrong;    207    Mo.    177,    105    S. 

1126    (claim  set  up  that  the  testator  W.  289. 

250 


CHAP.    X.]  ERROR,  FRAUD,  AND  UNDUE   INFLUENCE.  §    21G 

ary  instrumemt  by  tlie  party  executing  it  but  meant  for  a  blind  to 
deceive  otbers,  has  been  refused  probate.^  Hence  it  m-ay  be  said 
tbat  any  paper,  though  testamentary  on  its  face  and  presumably 
such,  may  be  shown  by  proof  not  to  have  been  thus  inrtended  and 
hence  be  held  inadmissiible  for  probate.® 

§  216.  How  far  Errors  may  be  corrected  in  the  Probate. 

But  much  difficulty  is  fo'und  as  to  correcting  errors  in  the  pro- 
bate, where  the  error  was  not  fundamental,  as  if  the  wrong  instru- 
ment sliould  be  executed,  but  embraces  simply  some  mistake  or 
omission  of  words  or  sentences  in  tth©  instrument  as  actually  exe- 
cuted and  witnessed.  At  the  root  of  this  difficulty  appears  the 
objection  that  a  written  instrument  should  not  be  varied  or  con- 
trolled by  parol  evidence.  English  courts  of  ecclesiastical  or  pro- 
bate jurisdidtiion  have  not  in  former  times  limited  their  functions 
very  closely  in  this  respect;  for  here  the  circumstances  surroimding 
the  testamentary  act  are  investigated,  in  order  that  the  probate  tri- 
bunal may  gather  the  intentions  of  ithe  deceased  as  to  what  writing 
or  writings  shall  operate  as  and  compose  his  will :  and,  so  far  as 
oral  or  nuncuipative  wills  are  permitted,  this  investigation  would 
take  a  wide  range. 

But  cjonfining  ourselves  to  wills  executed  in  writing,  the  English 
n;le  has  been  that  parol  evidence  of  the  testator's  intention  is  re- 
ceivable, to  explain,  not  an  ambiguity  upon  the  construction,  but 
an  ambiguity  upon  the  factum;  that  is  to  say,  as  to  what  writing 
or  writings  were  actually  executed  with  the  testamentary  intent. 
Thus,  parol  evidence  may  show  that  a  document  duly  executed  as 
a  will  was  never  intended  as  such;  as  where  by  mistake  each  of 
two  persons  executed  the  instrument  drawn  up  for  the  other ;  "^  or 
where  a  paper,  which  on  the  face  is  testamentary,  is  shown  to  have 
been  a  mere  contrivance  to  effect  some  collateral  object,^  or  only 

5.  Fleming   v.   Morrison,    72   N.    E.  6.  See  §§  216,  278,  294,  296  post. 

499,  187  Mass.  120.  105  Am.  St.  Rep.  7.  See  Hunt's  Goods,  L.  R.  3  P.  & 

386.     And  see  Lister  v.   Smith,   3   S.  D.  250:    S  215. 

&  T.  282.  8.  §   215a. 

251 


§216  LAW  OF  WILLS.  [PART    II. 

the  authenticated  memorandum  for  some  future  will.^  It  may 
show  that  a  codicil  was  intended  to  republish  a  will  of  a  different 
date  from  that  absurdly  wi'itten  in  it  through  mistake,  and  in  gen- 
eral may  connect  (the  codicils  with  their  appropriate  will  and  with 
one  another,  and  thus  give  all  the  links  of  the  testamentary  chain, 
in  case  of  doubt,  tlieir  rightful  sequence. 

So,  too,  it  is  held,  prior  to  1838,  that  parol  evidence  may  show 
whether  the  testator  meant  a  particular  clause  to  be  part  of  the 
instrument,  or  whether  it  was  introduced  without  his  knowled^; 
and  whether  the  residuary  clause  or  any  other  passage  was  acci- 
dentally omitted ;  ^  by  which  we  understand,  either  that  written 
papers  were  interpolated  or  omitted,  oir  else  that  by  comparison 
witJi  the  draft  of  the  will  as  intended,  or  with  the  testator's  own 
written  instructions,  the  error  may  be  corrected,  and  not  by  mere 
parol  evidence  of  what  the  testator  inltended.^  Two  conditions  are 
to  be  satisfied  in  such  cases  of  undue  omission  or  insertion:  (1) 
The  existence  of  some  absurdity  or  aanbiguity  on  the  face  of  the 
will,  suggestive  of  error,  and  calling  for  explanation.  (2)  Clear 
and  satisfactory  proof  that  the  insertion  or  omission  was  contrary 
to  the  intention  of  the  testator.  Subject  to  these  conditions,  the 
court  is  at  liberty,  and  even  bound,  to  pronounce  for  the  will,  not 
as  actually  presented,  but  with  the  error  rectified  by  omitting  or 
supplying  what  was  needful  for  giving  full  effect  to  the  testator's 
intent.^ 

9.  Mitchell  v.  Mitchell,  2  Hagg.  74;  3  Phillim.  485,  former  cases  are  cited. 

Castle  V.  Torre,  2  Moore  P.  C.  133;  1  and  in  this  case  Sir  John  Nicholl  re- 

Wms.   Exrs.   354.     And   see   15   P.   D.  fused    to    pass    a    line    which,    once 

109;   post,  §§  276-279.  passed,  would  have  set  all  wills  at  the 

1.  Lord  St.  Helens  v.  Lady  Exeter,  mercy  of  parol  evidence  and  intro- 
3  Phillim.  461;  Coppin  v.  Dillon,  4  duced,  as  he  said,  "a  most  alarming 
Hagg.  361;  Thomson,  Goods  of,  L.  R.  insecurity  into  the  testamentary  dis- 
1  P.  &  D.  8.  positions    of    all    personal    property." 

2.  Blackwood  v.  Damer,  4  Phillim.  Blackwood  v.  Damer,  supra,  must  be 
458;    Fawcett    v.    Jones,    3    Phillim.  considered    an    extreme    case    of    per- 
450;    1    Wms.    Exrs.    356-358,    citing  mitted   alteration   in   the  probate, 
cases  supra  and  others  not  at  present  3.  1    Wms.    Exrs.    357,    and    cases 
of  Tiitich    value.    In  Fawcett  v.  Jones,  cited. 

252 


CHAP.  S.]    EKROR^  FRAUD^  AND  UNDUE  INFLUENCE.        §  217 

§  217.  The  Same  Subject. 

But  as  to  wills  made  since  1838,  Sitat.  1  Vict.  c.  26,  whicli  re- 
quires the  whole  of  every  testamemfcary  disiposition  to  be  in  writing, 
and  signed  and  attested  pursuant  to  the  act,  operates  in  England 
to  debar  the  probate  court  from  correcting  omissions  or  mistakes 
in  such  a  disposiition,  by  reference  to  the  testato'r's  draft  or  instruc- 
tions.^ Indeed,  that  sitatute  changes  materially  the  old  testament- 
ary law  as  fonnerly  administered  by  the  ecclesiastical  courts.  For 
nnder  that  law,  as  Lord  Penzance  has  observed,  a  "  testamentary 
paper  needed  not  itio  have  been  signed,  provided  it  was  in  the  tes^ 
tator's  writing;  and  all  papers  of  a  testamentary  purport,  if  in  his 
writing,  commanded  the  equal  attention  of  the  court,  save  so  far 
as  one,  f roim  its  date  or  form,  might  be  manifestly  intended  to 
supersede  or  revoke  another,  as  a  will  superseding  instructions,  or 
a  suibsequent  will  revoking  a  former."  ^  Since  the  statute  took 
effect,  however,  English  authority  has  tended  largely  againsit  con- 
verting the  modern  court  of  probate  into  a  tribunal  of  construction, 
with  the  peculiar  and  dangerous  duty  of  shaping  a  will  into  con- 
formity with  the  supposed  intentions  of  the  testator,  whether  by 

4.  Wilson,  Goods  of,  2  Curt.  852;  stitute  the  basis  of  a  probate;  for  no 
Guardhouse  v.  Blackburn,  L.  R.  1  P.  paper,  whatever  its  form,  can  be  ad- 
&  D.  109,  in  which  the  general  rules  mitted  which  is  not  executed  accord- 
are  stated  which  ought,  since  Stat.  ing  to  the  statute.  And  the  court 
1  Vict.  c.  26,  to  govern  questions  of  went  further  than  this,  and  declared 
this  kind  in  probate  tribunals;  Hart-  that  a  probate  tribunal  had  no  longer 
er  V.  Harter,  L.  R.  3  P.  &  D.  11.  the    power    even    to    strike    out    part 

5.  Guardhouse  v.  Blackburn,  L.  R.  of  the  contents  of  a  duly  executed 
1  P.  &  D.  109,  113.  In  this  case  a  paper  on  the  ground  that,  although 
codicil  had  been  read  over  to  a  cap-  such  portion  formed  part  of  the  pa- 
able  testatrix,  and  duly  executed  by  per  when  executed,  it  was  inserted  or 
her  and  attested;  and  the  court  re-  retained  by  mistake  or  inadvertence, 
fused  to  exclude  from  probate  a  For  this  would  have  required  the  ad- 
clause  which  the  scrivener  swore  had  mission  of  parol  evidence;  and  be- 
been  inserted  by  him  through  inad-  sides  the  execution  there  was  proof 
vertence,  being  neither  contained  in  here  that  the  codicil  had  been  read 
his  instructions  nor  in  the  draft  over  to  the  testatrix  before  she  exe- 
codicil.      Unexecuted    instructions,    it  cuted  it. 

was  here  conceded,  can  no  longer  con- 

253 


§    218  J.AW   OF   WIJ.LH.  [part    II. 

Hiipplyiiig  or  Bul>Hti luting  words  and  cJauHfJS,  or  porhapH  expung- 
ing." 

§  218.  The  Same  Subject. 

in  'iilii.H  fountry,  the  laU-r  rulo  of  thr;  now  pro}>ato  tribunals  in 
Ji^ngland  appears  to  prevail  rat.h(?r  tiian  the,  earlier  and  ]('y.>«cr  ono 
of  the  old  oc5clf«ia«tical  e/>urt>^.  For  the.-/;  prot>at/;  tribunals  are 
.more  nearly  like  our.s,  wliiU;  the  iinid<Tn  St,;it,.  1  Vict.  c.  20,  huB  itft 
.\jnerie.an  e/>un1erparL  in  alrnoHt  every  Stat/;,  where  kK*.al  F'giHlation 
lia.s  long  irnifK/Hod  pe-euliar  forrnaliitieM  of  <;xeention  with  att/wtation, 
in  will.H  hot.h  of  reiil  iuid  fxrKoniil  [»ro[)frt,y.  In  an  Arneriean  f»u.rt 
of  probate,  parol  evidenee  may  'doubth-H.s  (;.Kt,;ihli.s[i  that  the  alle,ged 
itostator,  at  the  time  of  .'•igning  thr;  in.strurnent,  did  not  undi'frfttand 
thart;  it  wia.s  a  will,  nor  int/'nd  th<-  ideniic,;il  writhing  t/>  o|K;rate  as 
KUfh.^  Prolinhly,  too,  lh<-  l.ru*'  ••'■(\\\cnc^-  itiul  '•onnefj ion  of  will  and 
eodieils  might  \xt  vf;rha.lly  shown  where;  am[>lguity  exi.stod  ;  or,  jx^r- 
}jaj>s,  that  shwjts  inadvertxiiitly  omittxid  or  taeked  on  did  or  did  not 
really  belong  to  that  which,  pro[X;r]y  fast/^nf^l  (together,  constituted 
\}u)  whole  instrument  lifjon  vvhieh  signal nt(;  ;tnd  attestation  were 
meant  tx>  opr^rate.  Nnneupative  wills,  in  th<;  rare  irmtances  whten 
lhey  are  still  permit;t<-d,  follow  thei.r  own  mode  of  proof.  But  the 
liniit  of  concciiiig  aihgeii  mi.st,ak(;s  or  explaining  ;in  ainhiguit.y  \)y 
adding  or  eliHnging,  8eem«  hero  to  Ik?  approached.**  And  whora 
oiKj,  fully  capable  and  free  from  nn<lu(;  influent?  or  coercion,  exe- 
ontes  for  his  last  will  a  cc;rtain  instrument  as  already  drawm  np, 
his  d/raft  or  ins/tmctions  cannot,  we  may  assuine,  h*-  n -orted  to  for 
correcting  an  alleged  mistake  of  omission  or  fxpression  with  the 
aid  of  parol  testimony;  (^fX'cially  if  the  c/jutxiits  being  acutaliy 

6.  Ilarter  v.  Ilartf-r,  L.   R.  ?•  P.  &       jtractical    occasion    arises    for    conoc- 
I).  11;   Davy,  rjoodH  of,  1  S.  &  T.  2r,:>.       tion.      (189.0)    P.   341. 
Put   M-.i-   8   219;    PiiHlinell'H  OoodH,    1.3  7.   Hwctt  v.   Poarrlman,  1  Mhh.m.  2.5S; 

P.  D.  7.  An  omisaion  in  tlif;  will  of  Condi  v,  Eastliam,  27  W.  Va.  79R; 
(,!«■  of  tli(;  Cliristian  namfH  of  th«!  .''.r,  .Am.  K<-p.  :i4f).  72  N.  E.  400 ;  g  2ir.a 
jvcciitor  may  ]>(-  Hiipplied  in  thf  f^rant      Hupra. 

of     prolmtc     under     an     alias,     wliere  8.   Soft  c.    y.    Lcin.nin    v.    li'm-all,    1 

Add.   389. 
254 


CHAP.  X.]    EEROE,  FRAUD,  AST)   UXDUE  INFLUENCE.        §  218 

made  kno\vn  to  him  in  detail,  Jie  may  well  be  presumed  to  have 
adopted  tliera.  For  any  one  is  liable  to  change  what  has  been 
drafted  for  him  before  he  executes;  and  to  allow  an  instrument  to 
be  changed  in  terms  from  that  which  one  has  executed  with  all  the 
solemnities  by  which  the  law  surrounds  it,  upon  loose  and  untrust- 
worthy oral  evidence,  is  to  involve  the  transaction  in  lasting  un- 
certainty.' 

Upon  such  a  basis  of  argument  it  is  held  that  an  instrument 
cannot  be  oposed  for  probate  by  evidenee  that  the  testator  did  not 
understand  the  legal  effect  of  certain  provisions,  or  truly  appreciate 
the  proportions  in  which  his  property  would  be  thereby  distrib- 
uted.^ It  follows,  moreover,  that  an  omission  of  the  scrivener,  in 
preparing  a  will  which  the  statute  requires  to  be  executed  with  due 
formalities  under  the  statute,  cannot  be  supplied  by  parol  proof.^ 
Even  where  the  will  as  drawn  states  the  name  of  a  legatee,  but 
through  some  mistake  in  copying  it,  and  not  becau.se  of  the  testa- 
tor's neglect  to  state  the  sum  intended,  the  amount  of  the  legacy  is 
left  blank,  this  important  omission,  it  is  held,  cannot  be  supplied 
in  the  probate.^ 

Although  through  some  important  omission  of  this  kind,  the 
whole  scope  and  bearing  of  the  testamentary  provisions,  as  actually 
intended,  may  be  materially  changed,  the  mistake,  it  is  held  can- 
not invalidate  the  will  on  that  account,  and  render  it  inoperative;  * 

9.  Giflord   v.   Dyer,   2   R.   I.   99,   57  3.  Comstock    v.    Hadlyme,    8    Conn. 

Am.  Dec.  708;   Comstock  v.  Hndlyme,  254,   20  Am.  Dec.   100. 

8   Conn.   254,   20   Am.   Dec.    100;    Id-  4.  Comstock    v.    Hadlyme,    8    Conn, 

dings  V.   Iddings,   7   S.   &   R.   Ill,   10  254,    20    Am.    Dec.    100;     Salmon    v. 

Am.   Dec.   450;    Boell   v.   Schwa- tz,   4  Stuyvesant,  16  Wend.  321;   Hearn  v. 

Bradf.    Sur.    12;    Andress    v.    Weller,  Ross,    4    Harring.   46;    Creely    v.    Os- 

2  Green  Ch.  604.  trander,   3   Bradf.    107.     A   will   may 

1.  Barker  v.  Comins,  110  Mass.  477.  be  in  part  good  and  in  part  bi'd, 
The  testator  here  read  over  the  will  partly  sustained  and  partly  rejected, 
and  had  it  read  to  him  besides.  And  Morris  v.  Stokes,  21  Ga.  552.  The 
see  Jones  v.  Habersham,  63  Ga.  146;  validity  of  a  will  is  not  affected  by 
§   215.  mistakes   in  describing  the  land  spe- 

2.  Andress  v.  Weller,  2  Green  Ch.  cifically  devised.  Campbell  v.  Camp- 
604.  bell,    138    111.    612.     See   Franklin    v. 

255 


§    219  LAW   OF  WILLS.  [PAET    II. 

for  there  is  no  such  doctrine  of  law  as  requires  the  testator's  intent 
to  be  indivisible,  or  defeats  the  will  in  toto  inasmuch  as  the  tes- 
tator's intention  must  fail  in  part.  In  general,  no  mere  miscon- 
ception of  fact  or  law  can  invalidate  a  will.^ 

§  219.  The   Same   Subject:    Expunging    Something   Erroneous, 
etc. 

But  at  the  present  state  of  the  law,  English  and  American,  it 
would  appear  that  on  the  ground  of  mistake,  something  super- 
fluous maj  be  expimged  from  a  will  without  transgressing  the  stat- 
ute which  prescribes  a  formal  attestation,  although  a  co-equal  right 
to  insert  words  or  reform  a  sentence  be  denied.  ISTiunerous  oases 
establish  that  probate  of  a  pant  only  of  a  properly  attested  instru- 
ment purporting  to  be  a  will,  may  be  decreed  while  the  rest  is  re- 
jected.^ But  for  a  court  of  probate  to  try  to  find  out  by  extrinsic 
evidence  what  sort  of  a  legal  provision  the  testator  meant  to  make, 
and  then,  by  such  alterations  as  shall  carry  out  his  intention  in 
different  langu;age  and  with  possibly'  different  legal  effect  from 
what  he  intended,  remodel  the  will  in  form  to  suit  the  theory,  is 
certainly  a  dangerous  abuse  of  discretion.^  Once  more,  where  the 
interpolated  words  appear  by  the  proof  not  to  have  been  really 
made  known  to  the  tesltator,  or  adopted  into  the  instrument  with 
his  assent,  there  is  the  more  reason  for  striking  \them  out  at  the 
probate.^     And  if  words  may  be  thus  expunged  from  the  probate, 

Belt,  60  S.  E.  146,  130  Ga.  37  (mis-  J.  P.  Wilde  (Lord  Penzance)  lays 
take  caused  by  a  party  profiting  by  down  certain  principles  to  be  ob- 
it), served    in    cases    under    the    present 

5.  Monroe  v.  Barclay,  17  Ohio  St.  English  Statute  of  Wills;  Davy's 
302,  93  Am.  Dec.  620.  Goods,  1  S.  &  T.  262;   §§  217,  218. 

6.  Fawcett  v.  Jones,  3  Phillim.  8.  In  an  English  case,  where  the 
434;  Allen  v.  McPherson,  1  H.  L.  C.  scrivener  inserted  by  mistake  a  clause 
209.  And  see  Morris  v.  Stokes,  21  revoking  all  former  wills,  etc.,  the 
Ga.  5.'>2;  Rhodes  v.  Rhodes,  7  App.  testatrix  having  really  intended  that 
Cas.   192;    §   248,  post.  the  instrument  in  question  should  op- 

7.  Harter  v.  Harter,  L.  R.  3  P.  &  erate  as  a  mere  codicil  to  a  will  pre- 
D.  11.  See  also  Guardhouse  v.  Black-  viously  executed,  the  court  expunged 
burn,  L.   R.  1  P.  &  D.  109,  wh(!re  Sir  the    clause;     the    testimony    showing 

256 


CHAP.  X.]     ERROR,.  FRAUD,  AND  UNDUE  INFLUENCE. 


§   220 


when  shown  to  have  been  introduced  without  the  testator's  knowl- 
edge and  assent,  so  may  whole  clauses,^  or  some  signature  which 
was  improperly  and  needlessly  added  to  the  attested  instrument/ 

§  220.  Equity  Jurisdiction  to  correct  Mistakes. 

Courts  of  equity  have  general  jurisdiction  to  correct  mistakes 
in  a  will,  as  to  their  effect,  when  the  mistake  is  appai'ent  on  the 
face  of  the  instnunent  or  can  be  made  out  by  a  due  construotion 
of  its  terms.^  The  rights  of  parties  are  thus  passed  upon,  where 
there  are  several  persons  of  the  same  name,  or  some  misnomer  or 
misdescription  appears  in  the  will.^  Independent  gifts  to  strangers 
may  thus  be  supplied,  as  well  as  a  series  of  gifts  to  children  or 
members  of  a  class.*  Blanks,  too,  are  thus  supplied  by  construc- 
tion, when  the  testator's  intention  was  apparent;  as  where,  for  in- 


that  the  instrument  had  not  been 
read  over,  and  that  the  testatrix  did 
not  know  that  this  clause  was  intro- 
duced. Oswald's  Goods,  L.  R.  3  P.  & 
D.  162.  And  in  Morrell  v.  Morrell, 
7  P.  D.  &8,  where  it  was  found  that 
the  word  "  forty  "  was  introduced  by 
mistake  before  the  word  "  shares  "  in 
a  bequest  without  the  knowledge  or 
approval  of  the  testator,  the  court 
ordered  the  word  struck  out.  Still 
later,  where  in  a  will  the  name  of 
one  sister  was  inserted  by  a  mistake 
of  the  draftsman  for  that  of  the  other 
sister,  probate  was  granted  with 
the  repeated  name  omitted.  Boehm's 
Goods    (1891),  P.  247. 

In  a  very  plain  case,  the  English 
court  of  probate  went  so  far  in  1887 
as  to  grant  probate  of  a  will  with  a 
word  changed.  In  the  draft,  which 
was  read  over  to  the  testator,  a  be- 
quest was  made  to  the  "  Bristol 
Royal  Infirmary."  In  the  engrossed 
will,  which  was  not  read  over  to  him, 
this  bequest  was  written  by  mistake 
to    the    "  British    Royal    Infirmary." 


Upon  this  proof  and  an  affidavit  that 
there  was  no  such  institution  as  this 
last  named,  the  court  ordered  probate 
with  the  word  "  Bristol  "  substituted 
for  "  British."  Bushnell's  Goods,  13 
P.  D.  7.  See  also  Cooper's  Goods 
(1899),  P.  193;  (1895)  P.  341, 
where  the  Christian  name  of  the  x- 
ecutor  was  supplied  under  an  alias. 
9.  See  opinion  in  Morrell  v.  Mor- 
rell, 7  P.  D.  68,  and  authorities  cit- 
ed; Duane's  Goods,  2  S.  &  T.  23; 
Moore's  Estate,   (1892)   P.  378. 

1.  In  Smith's  Goods,  15  P.  D.  2 
(1889),  the  signature  of  the  tes- 
tator's wife,  made  not  with  the  ob- 
ject of  attesting,  but  merely  to  "veri- 
fy contents,"  was  expunged  from  the 
probate. 

2.  1  Story  Eq.  .Jur.  §§  169-183  and 
cases  cited;  Mellish  v.  Mellish,  4  Ves. 
45;  Wood  v.  White,  32  Me.  340;  Hunt 
V.  White,  27  Tex.  G43;  Jackson  v. 
Payne,  2  Met.    (Ky.)    567. 

3.  Wood  V.  White,  32  Me.   340. 

4.  Mellor  v,  Daintree,  33  Ch.  D. 
198. 


17 


257 


§    221  LAW   OF  WILLS.  [I'AKT    II, 

stance,  the  word  "  dollars  "  was  carelessly  omitted  after  the  words 
'■'  fifteen  hundred  "  in  stating  a  legacy,^  or  the  name  of  an  omitted 
legatee  can  be  inferred  from  the  whole  will.^ 

But  a  court  of  equity  does  not  in  such  a  case  change  the  probate ; 
it  corrects  the  mistake  or  supplies  the  omission  in  its  effect.  The 
coutrt  moulds,  so  to  speak,  the  language  of  the  testa/tor,  so  as  to 
carry  into  effect  what  he  obviously  intended.  It  is  not  the  prov- 
ince of  a  court  of  equity  to  reform  a  will  which  the  statute  requires 
to  be  executed  with  certain  formalities.''  And  since  the  Statute 
of  Frauds,  which  requires  wills  to  be  in  writing,  parol  evidence, 
or  evidence  dehors  the  will  is  not  admissible  to  vary  or  control  the 
terms  of  the  will,  as  expressed,  but  only  to  correct  mistakes  appar- 
ent on  the  face  of  the  will,  or  to  explain  some  latent  ambiguity.^ 
Under  our  American  system  in  the  various  States  probate  courts 
exercise  equity  powers  to  a  considerable  extent,  while  the  same 
appellate  tribunal  serves  for  bothi  probate  and  equity  matters ;  and 
it  seems  not  only  highly  expedient,  but  practicable,  that  all  correc- 
tions which  properly  involve  a  change  on  the  face  of  the  will  should 
be  in  some  way  spread  upon  the  probate  records,  which  serve,  in 
modem  times,  for  public  information  and  to  perpetuate  the  proof 
of  wills. 

§  221.  Where  Fraud  or  Force  vitiates  a  Will. 

The  general  considerations  we  have  stated  as  to  the  effect  of 

5.  Snyder  v.  Warbasse,  3  Stockt.  Eq.  110,  59  Am.  Dec.  602.  Cf.  Whit- 
Ch.  463.  lock  v.   Wardwell,   7   Rich.   453. 

6.  31  Ch.  D.  460.  And  see  post,  If  a  draftsman,  in  drawing  up  a 
§§  477,  527,  573;  Hubbuck's  Estate,  will,  misinterprets  essentially  the 
P.  D.    (1905)    129.  instructions    given    by    the    testator, 

7.  Fitzpatrick  v.  Fitzpatrick,  36  and  his  error  is  shown  to  have  en- 
Iowa,  674,  14  Am.  Rep.  538;  Schlott-  tered  into  the  execution,  the  will  can- 
man  V.  Hoffman,  73  Miss.  188,  55  not  stand.  Christman  v.  Roesch,  92 
Am.  St.  Rep.  527,  18  So,  893.  A  will  N.  E.  1080,  198  N.  Y.  538. 
cannot  be  corrected  in  equity  upon  8.  Hunt  v.  White,  24  Tex.  643; 
the  ground  of  mistake,  by  striking  Jackson  v.  Payne,  2  Met.  567.  And 
out  tlie  name  of  one  person  and  sub-  see  post.  Part  VI.,  c.  3,  as  to  extrin- 
stituting  that  of  anotlicr  inadvertent-  sic  evidence  in  aid  of  the  construciioa 
ly   omitted.      Yates   v.   Cole,    1   Jones  of  wills. 

258 


CUAP.  X.]     EKROK^  FKAUD^  AND  UNDUE  INFLUENCE.        §  221 

essential  error  in  vitiating  a  will,  apply  where  fraud  or  force  ap- 
pears to  have  operated;  only  that  justice  is  always  more  alert  to 
defeat  gifts  and  bequests  brought  about  by  the  wrongful  imposi- 
tion of  others,  who  cherish  sinister  designs,  than  those  which  im- 
pute mere  error  to  the  giver,  or  to  some  third  party  in  the  affair 
who  was  disinterested.  If,  then,  an  instrument  executed  under 
the  wrong  impression  that  it  was  one's  ov^tq  intended  will,  was 
i-eally  a  different  document  in  terms,  artfully  supplied  by  another, 
with  some  ulterior  purpose  in  view,  it  cannot  stand ;  and  far  more 
readily  ought  material  words  and  sentences  omitted,  changed,  or 
interpolated  to  affect  the  probate  of  the  will,  or  vitiate  that  in- 
strument altogether,  whenever  fraudulent  design,  and  not  a  scriv- 
ener's innocent  mistake,  is  shown  to  have  produced  it.*  "Where 
suspicion  attaches  to  such  a  document,  no  strong  presumption  arises 
from  its  execution ;  and,  although  the  testator  knew  and  approved 
the  contents  of  the  paper,  it  may  still  be  refused  probate  if  fraud 
purposely  practised  on  the  testator  in  obtaining  his  execution  be 
established  in  proof. -^ 

So,  too,  a  will  which  has  been  extorted  from  a  testator  by  force 
is  voidable  as  well  after  death  by  those  whose  rights  would  be  im- 
paired by  its  provisions  as,  during  his  life-time,  by  the  unwilling 
testator  himself.  For,  as  it  was  long  ago  observed,  if  it  can  be 
demonstrated  that  actual  force  was  used  to  compel  the  tesitiator  to 
make  the  will,  there  can  be  no  doubt  that  although  all  formalities 
have  been  complied  with,  and  the  party  was  perfectly  in  his  senses, 
yet  such  a  will  can  never  stand.- 

Our  common  law  makes  no  classification  of  persons  incapable 
for  want  of  liberty  or  free  will,  as  did  the  civilians,  but  lea\^s  the 
couirt  to  determine,  upon  all  the  circumstances  of  each  particular 

9.  Where  the  scrivener  of  a  Trust  Stirk's  Estate,  81  A.  187.  232  Pa.  98. 
Company,  in  writing  a  will,  set  forth  1.  See  observations  of  Lord  Pen- 
as  a  beneficial  gift  to  the  Company  zance  in  Guardhouse  v.  Blackburn, 
what  the  testator  meant  should  be  L.  R.  1  P.  .5:  D.  109,  116. 
stated  as  a  gift  in  trust  for  the  bene-  2.  Eyre,  C.  B.,  in  Mountain  v. 
fit  of  others,  the  Company  lost  Bennett.  1  Cox,  355.  Unless  ratified 
through     the     fraud     of     its     agent.  after  all  constraint  was   removed. 

259 


§    223  LAW  OF  WILLS.  [PAKT    II. 

case,  whether  or  no  the  testator  had  the  essential  liberum  anirawn 
te  standi.^ 

§  222.  The  Same  Subject:    Importunity  and  Undue  Influence. 

Closely  connected  with  the  subject  of  fraud  and  force  is  that  of 
importunity  or  undue  influence ;  which  latter  tenn  is  now  com- 
monly used  in  the  law  of  wills  to  denote  that  more  subtle  and  in- 
sidious constraint  which  takes  away  free  agency  by  means  of  the 
ascendency  gained  by  the  stronger  mind  over  the  weaker.  Undue 
influence  involves  in  some  degree  one  or  both  the  elements  of  fraud 
and  foTce,  though  not  so  distinctly  or  easily  made  out,  and  is  usu- 
ally shown  in  originating  and  shaping  the  will  of  some  old  or 
feeble  person,  not  actually  incapable,  and  yet  so  nearly  disabled 
by  sickness  or  mental  infirmity  that  the  pressure  exerted  has  piXH 
duced  a  formal  testamentary  expression  inconsistent  with  the  idea 
of  a  free  and  disposing  mind. 

§  223.  Equity  Jurisdiction  of  Fraud  and  Force;  Probate  Courts 
decide  Such  Questions. 
Equity  relieves  against  fraud  and  force,  as  well  as  error,  by 
virtue  of  its  general  jurisdiction;  but  in  the  present  instance  an 
adequate  and  far  more  suitable  remedy  is  foimd  by  making  the 
issue,  like  that  of  mental  capacity,  at  the  probate  of  the  will.     In 

3.  2  Bl.  Com.  497;   Swinb.  pt.  2,  §  in  constantum  virum;  as  the  fear  of 

8;     1    Wms.    Exrs.    44;     Jackson    v.  death,   or   of   bodily   hurt,   or   of   im- 

KniflFen,  2  Johns.  31,  3  Am.  Dec.  390.  prisonment,  or  of  loss  of  all  or  most 

Where  the  testator  had  a  fear  upon  part  of  one's  goods  or  the  like;  where- 
him,  as  the  old  books  expressed  it,  it  of  no  certain  rule  can  be  delivered, 
could  not  be,  as  it  ought,  libera  vo-  but  it  is  left  to  the  discretion  of  the 
luntas.  Yet,  as  Swinburne  adds,  "  it  judge,  who  ought  not  only  to  con- 
is  not  every  fear,  or  a  vain  fear,  that  sider  the  quality  of  the  threateninga, 
will  have  the  effect  of  annulling  the  but  also  the  persons  as  well  threat- 
will,  but  a  just  fear;  that  is,  such  as  ening  as  threatened;  in  the  person 
that  indeed  without  it  the  testator  threatening,  his  power  and  disposi- 
had  not  made  his  tesi^ament  at  all,  tion;  in  the  person  threatened,  the 
at  lea-st  not  in  that  manner.  A  vain  sex,  age,  courage,  pusillanimity,  and 
fear  is  not  enough  to  make  a  testa-  the  like."  Swinb.  pt.  7,  §  2,  pt.  7. 
ment  void;  but  it  must  be  such  a  And  see  Godolph.  pt.  3,  c.  25,  §  8;  1 
fear  as  the  law  intends,  when  it  ex-  Wms.  Exrs.  44. 
presses  it  by  a  fear  that  may  cadere 

260 


CHAP.  X.]    ERROR,  FRATJD^,  AND  UNDUE  INFLUENCE.        §  223 

some  of  the  earlier  oases  the  court  of  chancery  distinctly  asserted  a 
jurisdiction  to  relieve  against  fraud  in  procuring  a  will;  *  in  other 
cases  disclaiming  such  jurisdiction ;  ^  and  in  still  others  declaring 
the  party  to  the  fraud  a  trustee  for  those  prejudiced  by  it.^  But 
it  became  finally  settled  in  England  long  ago,  that  equity  could 
not  set  aside  a  will  of  either  real  or  personal  property,  because  a 
court  of  law  was  competent  to  annul  for  fraud  in  the  one  case,  and 
an  ecclesiastical  court  in  the  latter.'^  Modern  legislation  in  that 
country  makes  chancery  and  probate  divisions  of  the  same  high 
court  of  justice,  and  removes  the  former  distinctions  between  wills 
of  realty  and  personalty  as  to  the  effect  and  desirableness  of  a  pro- 
bate. Objections,  itherefore,  on  the  ground  of  fraud  and  force, 
should  now  be  taken  in  the  court  of  probate;  and  the  chancery 
judges  decline  still  more  positively  to  interfere  with  the  exclusive 
exercise  of  a  probate  jurisdiction.^ 

In  this  country  the  probate  courts  of  each  State  are  invested 
with  special  powers  to  deal  with  testamentary  issues  of  fraud  and 
force,  and  tO'  re^open,  if  necessary,  their  ovm  decrees,  or  submit  to 
those  of  the  appellate  court,  which  regulates  all  matters  of  chan- 
cery or  probate.  The  American  rule,  therefore,  has  steadily  dis- 
countenanced the  idea  that  equity  courts  should  entertain  bills  for 
setting  aside  a  will  on  the  ground  of  fraud,  force,  or  even  mistake. 
inasmuch  as  the  probate  registry  preserves  the  public  evidence  of 

4.  1  Wms.  Exrs.  45,  note,  citing  1  Milton,  3  Ch.  D.  27,  where  a  testator 
Ch.  Rep.  123;  Prec.  Cli.  123;  Goss  v.  had  left  all  to  A.  B.,  his  wife,  and 
Tracy,  1  P.  Wms.  287.  appointed  her  his  sole  executrix,  and 

5.  1  Ch.  236;  Archer  v.  Mosse,  2  the  will  was  admitted  to  probate,  the 
Vern.   8.  heir-at-law   filed   a   bill   in   equity   to 

6.  1  Ch.  22;  1  Vern.  296;  Barnes-  have  her  declared  a  trustee  for  him 
ly  V.  Powel,  1  Ves.  Sen.  287.  on  the  ground   that  she  had   fraudu- 

7.  Wms.  Exrs.  45;  Allen  v.  M'Pher-  lently  concealed  from  the  testator  the 
son,  1  H.  L.  Cas.  191;  Meluish  v.  fact  that  she  was  not  his  legal  wife, 
Milton,  3  Ch.  D.  27.  but  had  a  former  husband  living.     It 

8.  Probate  Court  Act  of  20  and  21  was  held  that  chancery  had  no  juris- 
Vict.  c.  77  (1857)  ;  Pinney  v.  Hunt,  diction,  but  the  case  came  under  the 
6  Ch.  D.  98;  Barraclougb  v.  Green-  exclusive  cognizance  of  the  court  of 
hough,   L.   R.   2   Q.   B.   612;    1   Jarm.  probate. 

Wills,  28.    la  the  case  of  Meluish  v. 

2G1 


§  223 


LAW  OF  "WILLS. 


[part   IL 


testamentary  succession,  and  probate  courts  themselves  have  all  the 
powers  and  machinery  necessary  to  give  full  and  adequate  relief.^ 
In  most  States  probate  is  conclusive  and  necessary  in  wills,  whether 
of  real  or  personal  property  or  of  both  combined.  And  probate  of 
a  will  determines  all  questions  of  fraud,  force,  and  undue  influence 
in  their  procurement,  as  well  as  of  testamentary  capacity.^ 

But,  under  English  and  American  law,  equity  still  passes  upon 
the  probated  will  as  a  court  of  construction,  and  determines  what, 
in  fact,  the  instrument  as  thus  spread  upon  the  record  shall  be 
taken  to  mean,  as  to  provisions  in  controversy;  though  such  ques- 
tions may  now  be  raised  in  tlie  probate  court,  while  the  estate  is 
in  course  of  settlement,  oir  by  virtue  of  equity  powers  conferred 
in  these  later  days  by  express  legislation ;  and  in  all  such  cases,  the 
exercise  of  a  probate  and  equity  supervision  by  the  same  appellate 
court,  as  modern  legislation  provides,  tends  to  secure  that  consist- 


9.  See  Gaines  v.  Chew,  2  liow.  619 ; 
Broderick's  Will,  21  Wall.  503; 
Townsend  v.  Townsend,  4  Coldw.  70; 
Lyne  v.  Guardian,  1  Mo.  410;  Blue  v. 
Patterson,  1  Dev.  &  B.  Eq.  457.  Brad- 
ley V.  Bradley,  83  A.  446,  117  Md. 
515;  Fowler's  Will,  74  S.  E.  117,  159 
N.  C.  203. 

1.  Clark  V.  Fisher,  1  Paige,  176. 
"  Whatever  may  have  been  the  orig- 
inal ground  of  this  rule,"  says  Mr. 
Justice  Bradley,  concerning  the  re- 
fusal of  an  equity  tribunal  to  take 
jurisdiction  to  set  aside  a  will  or  its 
probate,  "  the  most  satisfactory 
ground  for  its  continued  prevalence 
is,  that  the  constitution  of  a  suc- 
cession to  a  deceased  person's  estate 
partakes,  in  some  degree,  of  the  na- 
ture of  a  proceeding  in  rem,  in  which 
all  persons  in  the  world  who  have  any 
intcrf'st  are  deemed  parties,  and  are 
concluded  as  upon  res  adjudicata  by 
the  decision  of  the  court  having  jur- 
i.sdiction.      The    public     interest     re- 


quires that  the  estates  of  persons  de- 
ceased, being  deprived  of  a  master, 
and  subject  to  all  manner  of  claims, 
should  at  once  devolve  to  a  new  and 
competent  ownership;  and,  conse- 
quently, that  there  should  be  some 
convenient  jurisdiction  and  mode  of 
proceeding  by  which  this  devolution 
may  be  effected  with  least  chance  of 
injustice  and  fraud;  and  that  the  re- 
sult attained  should  be  firm  and  per- 
petual. The  courts  invested  with  this 
jurisdiction  should  have  ample  pow- 
ers both  of  process  and  investigation, 
and  sufTicient  opportunity  should  be 
given  to  check  and  revise  proceed- 
ings tainted  with  mistake,  fraud,  or 
illegality."  Broderick's  Will,  21 
Wall,  503,  509,  22  L.  Ed.  599.  And  see 
Morrison  v.  Thoman,  89  S-  W.  409,  99 
Tex.  409  (husband's  fraud  upon  his 
wife,  where  both  executed  wills  to- 
gether) ;  Arnold's  Estate,  82  P.  252, 
147    Cal.    583. 


262 


CHAP.  X.]    ERROR^  FRAUD,  AN^D  UNDUE  INFLUENCE.        §  224 

emcy  and  hamaony  of  interpretation  and  enforceonent  which  justice 
and  good  sense  imperatively  demand.^ 

§  224.  General  Considerations  as  to  Fraud  and  Deceit. 

Fraud  vitiates  a  will ;  it  is  no  less  detestable  in  law,  say  the  old 
writers,  than  open  force.  If,  therefore,  the  testator  be  circum- 
vented by  fraud,  the  testament  is  of  no  mo^re  force  than  tliough  he 
were  constrained  by  fear.^  There  is  no  positive  rule  to  be  laid 
do^\^l  as  to  the  quantum  ox  quality  of  deceit  required  to  vitiate  a 
will ;  but  the  court  or  triers  should  judge  by  all  the  circumstances, 
whether  it  is  probable  that  tihie  deceit  took  effect  upon  the  testa- 
ment, considering  the  character  of  the  latter,  and  comparing  the 
deceit  with  the  capacity  or  understanding  of  the  person  supposed 
to  be  deceived.* 

Thus,  it  is  held  'that  when  a  legacy  is  given  to  a  person,  under  a 
particular  character  which  he  has  falsely  assumed,  and  which  alone 
can  be  supposed  the  motive  of  the  bounty,  the  law  will  not  permit 
him  to  avail  himself  of  it,  and  therefore  he  cannoit  demand  his 
legacy.^  But  before  applying  this  rule,  the  court  must  be  satisfied 
that  the  assumed  character  was  the  motive  of  the  bounty.®  Whether 
such  a  rule  would  operate  to  deprive  one  of  testamentary  benefits 
with  whom  a  testator  lived  as  his  wife,  on  the  allegation  that  she 
had  deceived  him,  having  a  former  husband  still  living,  must  de- 
pend upon  circumstances ;  and  certainly  the  character  of  lawful 
wife  is  by  no  means  the  sole  moving  cause,  generally  speaking,  of  a 
man's  gift  to  one  who  has  proved  his  faithful  and  devoted  com- 
panion.^ 

2.  See    Gawler    v.    Standerwick,    2  W.  956,  150  Wis.  401;  74  S.  E.  189. 

Cox,   16;    1  Wins.  Exrs.  45;    1  Jarm.  3.   Swinb.  pt.  7,  §  3;   1  Wnia.  Exrs. 

Wills,  27;   N.  E.  Trust  Co.  v.  Eaton,  45. 

140  Mass.  532,  54  Am.  Rep.  493.  4.  Swinb.  pt.   7,   §   3.     See  Dc^  Nelf 

On   the  other  hand,   the  legal   con-  v.  Howell,  75  S.  E.  202,  138  Ga.  248. 

struction  of  a  will   is  not  cognizable  5.  Risliton  v.  Cobb,  5  My.  &  Or.  150. 

by   the   appellate   court   when   sitting  6.  Kennell   v.   Abbott,   4  Ves.   802; 

to  determine  the  question  of  its  pro-  Wilkinson    v.    Joughin,    L.    R.    2    Eq. 

bate.     Small  v.  Small,  4  Greenl.  220.  319. 

And  see  Cowie  v.  Strohmeyer,  136  N.  7.  See  Meluish  v.  Milton,  3  Ch.  D. 

263 


§  226  LAW  or  WILLS.  [pakt  II. 

§  225.  Fraud,  Undue  Influence,  etc.,  vitiate  when  acting  upon 
a  Weak  though  Capable  Mind. 

Fraud  and  imposition,  or  undue  influence,  vitiate  a  will,  when- 
ever practiced  upon  a  weaker  mind  to  the  extent  of  overpowering 
and  directing  it,  provided  the  result  be  such  that  others  have  a 
right  to  complain.  Such  weakness  of  mind  need  not,  of  course, 
amount  to  actual  incapacity  for  making  any  will ;  ^  though  is  actu- 
ally incapable,  still  less  can  one's  will  be  established. 

The  question,  it  is  said,  whether  a  will  is  the  free  and  voluntary 
act  of  the  testator,  or  the  result  of  fraud  or  of  influences  unduly 
operating  upon  him  in  consequence  of  which  his  will  was  made 
subo'rdinate  to  that  of  another,  depends  upon  the  question,  whether 
he  had  sufficient  intelligence  to  detect  ithe  fraud,  or  strength  of  will 
to  resist  the  influences  brought  to  bear  upon  him.^  There  can  be  no 
fatally  undue  influence,  unless  theire  is  a  person  incapable  of  pro- 
tecting himself  as  well  as  a  wrong-doer  to  be  resisted.^  The  two 
grounds  of  opposition, — (1)  that  the  testator  was  not  of  sound 
and  disposing  mind ;  and  (2)  that  the  will  was  procured  by  fraud, 
compulsion,  or  undue  influence, — ^are  often  so  closely  connected  as 
to  be  properly  made  together  at  the  probate,  the  issue  being  deter- 
mined by  the  proof  adduced  at  the  trial,^  although  the  burden  of 
proof  resits  differently  in  the  two  issues.' 

§  226.  Bodily  and  Mental  Condition  at  the  Time  of  Execution 
of  Great  Consequence  in  the  Issue. 

In  such  an  issue,  therefore,  it  is  of  great  consequence  to  ascertain 

27,   29.      Such   questions   of   fraud   as  braced  in  one  inquiry  of  devisavit  vel 
partly   or    wholly    vitiating   the    will  non,    where   both    questions    are    con- 
ought  to  be  determined  in  probate  and  nected  together.     Wilson's  Appeal,  99 
not  chancery,  under  modern  practice.  Penn.  St.  545. 
lb.  3.  See   §    239.     To   speak  literally, 

8.  See  Lord  Donegal's  Case,  2  Ves.  one  who  is  mentally  incompetent  can- 
Sen.  408,  by  Lord  Ilardwicke.  not  be  the  subject  of  fraud  or  coer- 

9.  fJrifnth  V.  DifTenderfTer,  50  Md.  cion  in  a  legal  sense.  57  So.  450 
406.  (Ala.).     Yet  feebleness  of  mind  may 

1.  I-Atham   V.  Udell,  38  Mich.   238.      always   be   shown    as   an    element    in 

2.  Tlie  issues  of  mental  unsi.und-  such  controversies  over  a  will.  136 
ness  and  undue  influence  may  be  em-      N.  Y.  S.  1085. 

2G4 


CHAP.  X.]    EKROE^  rRAUD_,  AND  UNDUE  INFLUENCE,        §  227 

tihe  mental  and  physical  condition  of  the  testator  at  and  about  the 
time  the  will  in  question  was  executed.  What,  for  example,  would 
be  improper  influence  in  a  person  of  feeble  health,  might  not  be 
such  in  the  case  of  one  in  robust  health  ;^  and  what  would  not 
amount  to  moral  coercion  while  the  testator  was  in  his  prime, 
might  prove  such  when  he  approached  his  second  childhood.^  In 
fact,  controversies  of  this  kind  occur  most  commonly  where  the 
decedent  was  at  the  time  of  executing  tbe  instrument  in  declining 
health  of  mind  and  body,  and  so  detached  from  his  usual  surround- 
ings as  to  be  peculiarly  exposed  to  the  secret  machinations  and  im- 
portunities of  some  person  or  persons  who,  purposely  or  through 
favoring  opportunity,  hedged  him  about  as  life  and  reason  ebbed 
away.  And  numerous  cases  might  be  cited  to  illusitrate  how 
readily  a  will  may  be  set  aside,  without  much  regard  to  theoretical 
distinctions  of  compos  or  non  compos,  wherever  it  appears  that  for 
procuring  it  a  person  of  at  least  weak  capacity,  and  nearly,  if  not 
altogether  out  of  his  mind,  was  coerced  or  imposed  upon.^  On  the 
other  hand,  some  have  thought  that  the  exercise  of  undue  influ- 
ence necessarily  presupposes  weakness  of  mind  in  the  testator ;  and, 
certainly,  it  matters  little  how  ingenious  is  the  fraud,  or  how  coer- 
cive the  influence,  if  there  be  intelligence  enough  to  detect,  and 
strengtb  enough  to  resist.^ 

§  227.  Undue  Influence  defined;   Something  Sinister  is  always 
imputed  in  the  Present  Connection. 
Undue  influence  is  defined  as  that  which  compels  the  testator  to 
do  thiat  which  is  against  his  will,  from  fear,  the  desire  of  peace,  or 

4.  Griffith  v.  Diffenderffer,  50  Md.  strong  here  to  repel  the  usual  pre- 
466;  Haydock  v.  Haydock,  33  N.  J.  sumption.  86  A.  485,  238  Penn.  585. 
Eq.  494.  6.  Mairs  v.   Freeman,   3  Redf.    (N. 

5.  Perret  v.  Perret,  184  Penn.  St.  Y.)  181;  Haydock  v.  Haydock,  33  N. 
131,  39  A.  33.  Soundness  of  mind  J.  Eq.  494;  Cliappell  v.  Trent,  90  Va. 
and   body    does    not    carry    immunity  849,  19  S.  E.  314. 

from      fraud      or      undue      iniluence.  7.  Colt,  J.,  in  Shailer  v.  Bumstead, 

Olson's    Estate,    126    P.    171,  19    Cal.      99  Mass.  121;   §  225,  supra. 
App.   379.      But   proof   must   be   very 

265 


§    227  LAW  OF  WILLS.  [pART    11. 

some  feeling  which  he  is  unable  to  resist.*  We  saj  that  the  influ- 
ence must  be  undue,  in  order  to  vitiate  the  instrument,  because  in- 
fluences of  one  kind  or  another  surround  every  rational  being,  and 
operate  necessarily  in  determining  one's  course  of  conduct  under 
every  relation  of  life.  Within  due  and  reasonable  limits  such  in- 
fluence affords  no  ground  of  legal  objection  to  his  acts.  Hence 
mere  passion  and  prejudice,  the  influence  of  peculiar  religious  or 
secular  training,  of  personal  associations,  of  opinions,  right  or 
wrong,  imbibed  in  the  natural  course  of  one's  experience  and  con- 
tact with  society,  cannot  be  set  up  as  undue  to  defeat  a  will,  if,  in- 
deed, it  were  possible  to  gauge  the  depth  of  such  influences  at  all.' 
'■'  It  is  extremely  difficult,"  as  Lord  Cranworth  has  observed,  "  to 
state  in  the  abstract  what  acts  will  constitute  undue  influence  in 
question  of  this  nature.  It  is  sufficient  to  say,  that,  allowing  a 
fair  latitude  of  construction,  they  must  range  themselves  under 
one  or  other  of  these  heads — coercion  or  fraud. ^ 

Xot  even  can  the  circumstance  that  the  influence  gained  by  one 
individual  over  another  was  very  great,  be  treated  as  undue  in  our 
present  connection ;  especially  if  the  person  influenced  had  free  op- 
portunity and  strength  of  mind  sufficient  to  select  what  influences 
should  guide  him,  and  was  in  the  full  sense  legally  and  morally  a 
responsible  being.  "  In  a  popular  sense,"  says  Lord  Cranworth, 
"  we  often  speak  of  a  person  exercising  undue  influence  over  an- 
other, when  the  influence  certainly  is  not  of  a  nature  which  would 

8.  Turner    v.    Cheesman.    15    N.    J.  A.    453,    116    Md.    605;    McNitt's   Es- 

Eq.  243 ;   Gardiner  v.  Gardiner,  34  N.  tate,  78  A.  32,  229  Pa.   71. 
Y.  155;  1  Redf.   (N.  Y.)   249;  Blnkey  9.  See     Newton      v.      Carberry,      5 

V.   Blakey,   33   Ala.   611;    Leverett  v.  Cranch  C.  C.  632. 

Carlisle,    19    Ala.    80;    38    Ala.    131;  1.  Boyse   v.    Rossboronwh,    6   H.    L. 

Potts  V.  House,  6  Ga.  234;    Davis  v.  Gas.  6;  3  DeG.  M.  &  G.  817.     And  see 

Calvert,  5  Gill  &  J.  269,  25  Am.  Dec.  Sir    James    Hannen    in    Wingrove    v. 

282;    Wittnian   v.   Goodhand,   26   Md.  Wingrove,  11  P.  D.  83.     It  is  a  spe- 

O't:    O'Xcall    v.    Earr,    1    Ricli.   80,   42  cies   of   constructive   fraud   not  to   be 

Am.   Dec.   404;    Marshall    v.    Flinn,    4  defined  by  any  fixed  words.     Smith  v. 

Jones  L.  199;   De  NiefT  v.  Howell,  75  Henline,   174   111.   184,   51   N.    E.  227; 

.S.   E.  202,   138   Ga.  248    (deception);  69   Ala.   555,  44  Am.  Rep.   528.     See 

Buckmnn's  Will,  85  A.  246,  80  N.  J.  Ball's  Estate,  141  N.  W.  8,  153  Wis. 

Eq.    556;    Duddcrar   v.   Dudderar,    82  27. 

200 


CHAP.    X.]  ERROR,  FRAUD_,  AND  UNDUE   INFLUENCE.  §    227 

invalidate  a  will.  A  young  man  is  often  led  into  dissipation  by  fol- 
lowing the  example  of  a  companion  of  riper  years,  to  whom  he  looks 
up,  and  who  leads  him  to  consider  habits  of  dissipation  as  venial, 
and  perhaps  even  creditable;  the  companion  is  then  correotly  said 
to  exercise  an  undue  influence.  But  if,  in  these  circumstances,  the 
young  man,  influenced  by  his  regard  fox  the  person  who  had  thus 
led  him  astray,  were  to  make  a  will  and  leave  to  him  everytlnng 
he  possessed,  such  a  will  certainly  could  not  be  impeached  on  the 
ground  of  undue  influence.  ISTor  would  the  case  be  altered  merely 
because  the  companion  had  urged,  or  even  importuned,  the  young 
man  so  to  dispose  of  his  property ;  provided  only,  that  in  making 
such  a  will,  the  young  man  was  really  carrying  into  effect  his  own 
intention,  formed  without  eitlier  coercion  or  fraud."  ^ 

To  suppose,  however,  instead  of  this  evil  influence,  selfishly  ex- 
cited to  the  exclusion  of  others  who,  rightly  considered,  were  equal 
or  greater  objects  of  the  testator's  bounty,  an  ascendency  gained 
and  exerted  to  reclaim  from  dissipated  habits  and  for  some  just 
and  benevolent  purpose,  this  is  never  likely  to  invalidate  a  will, 
however  earnest  or  powerful.  By  this  we  do  not  intend  that  justifi- 
able ends  are  to  be  sougth  by  unjustifiable  means ;  nor  that  what  one 
earnestly  believed  to  be  a  just,  benevolent,  and  unselfish  purpose, 
proves  necessarily  so  when  the  will  is  set  up  for  probate.  But 
should  an  intimate  friend,  a  spiritual  adviser,  or  some  member  of 
the  testator's  household  to  whom  he  is  strongly  attached,  earnestly 
dissuade  him  from  an  unjust  purpose,  urge  him  not  to  disinherit 
those  entitled  to  his  bounty,  against  whom,  without  good  cause, 
his  heart  has  been  locked  up,  plead  and  urge  him  to  become  recon- 
ciled, to  forgive,  to  part  from  life  in  charity  and  peace, — in  short, 
to  make  what  all  ought  to  call  a  fair  and  natural  will ;  and  this  in 
an  unselfish  spirit  and  without  seeking  some  underhand  personal 
advantage,  such  influence  should  not  be  allowed  to  disturb  the 
will,  on  any  mere  suggestion  that  it  was  potent  in  preventing  the 

2.  Boyse  v.  Rossborough,  6  H.  L.  see  Lord  Pc^nzance  in  Parfitt  v.  Law- 
•Cas.   6,  3  De  G.  M.  &  G.   817.     And      less,  L.  R.  2  P.  &  D.  462. 

267 


§    228  LAW  OF  WILLS.  [PAKT    II. 

wrong.^  In  short,  the  undue  influence  which  vitiates  the  testa- 
ment has  always  something  sinister,  corrupt,  and  selfish  a.bout  it^ 
when  properly  viewed,  however  sly  and  secret  in  its  workings,  or 
varnished  over  with  hypocrisy,  and  hence  is  difficult  to  be  traced 
except  in  the  effect  it  has  produced. 

§  228.  How  Undue  Influence  may  be  exerted. 

Undue  influence  may  be  exerted  by  physical  coercion,  by  impor- 
tunity, or  by  threats  of  personal  harm  and  duress.  But  a  more 
common  kind  of  undue  influence  than  this  is  where  the  mind  and 
the  will  of  the  testator  have  been  overpowered  and  subjected  to  the 
will  of  another,  so  that  while  the  testator  appeared  to  execute  will- 
ingly and  intelligently,  it  was  really  the  will  of  another,  induced 
by  ithe  paramount  influence  exercised  upon  a  weak  or  impaired 
mind.  "  Such  a  will,"  obseiwes  the  court  of  appeals  in  a  New 
York  case,  "  may  be  procured  by  working  upon  the  fears  or  the 
hopes  of  a  weak-minded  person;  by  artful  and  cunning  contriv- 
ances; by  constant  pressure,  persuasion,  and  effort,  so  that  the 
mind  of  the  testator  is  not  left  free  to  act  intelligently  and  under- 
standingly."  ^  And  we  may  well  assume  that  a  pressure  of  vdnat- 
ever  character,  whether  it  act's  on  the  fears  or  on  the  hopes  of  an 
individual,  is,  if  so  exerted  as  really  to  overpower  tthe  volition,  a 
species  of  restraint  under  which  no  valid  will  can  be  made.^ 

Whatever,  indeed,  destroys  free  agency  and  constrains  a  person 
to  do  what  is  against  his  will,  and  what  he  would  not  do  if  left  to 

3.  Persuasions  used  by  a  testator's  v.    Montgomery,    93    Ala.    293,    9    So. 

children    to     induce    a    devise    to    a  311;    Waters  v.  Waters,   78  N.  E.   1, 

brother's  or  sister's  children  who  were  222   111.   26,    113   Am.    St.   Rep.    359; 

poor  will  not  condemn  a  will.     Har-  Turner's  Appeal,  44  A.  310,  72  Conn, 

rison's  Will,  1  B.  Mon.  351.     Nor  are  305;  Converse  v.  Mix.  115  P.  305,  63 

considerations   addressed   to   a   testa-  Wash.  318. 

tor's  good  feeling,  from  disinterested  4.  Earl,   J.,    in   Marx   v.   McGlynn, 

and    honorable    motives,    and    simply  88  N.  Y.  357,  370. 

influencing  his  better  judgment,  to  be  5.  Hall   v.   Hall,   L.   R.   1    P.   &    D. 

deemed  "  undue."     Tucker  v.  Field,  5  48]  ;    Haydock  v.  Haydock,   33   N.  J. 

Redf.   (N.  y.)   139.     And  see  Cornwrll  Eq.  494. 
V.  Riker,  2  Dcm.   (N.  Y.)   354;  Eastis 

268 


CHAP.    X.]  EEROR^  FRAUD,  AND  UNDUE   INFLUENCE.  §    229 

Limself,  is  undue  influence  in  testamentary  law,  whetlier  tihe  con- 
trol were  exercised  by  physical  force,  threats,  importunity,  or  any 
other  species  of  mental  or  physical  coercion.^  And  undue  influ- 
ence sufficient  to  invalidate  a  will  may  be  exerted  without  positive 
frauid,^  notwithstanding  the  elements  of  fraud  and  coercion  which 
may  mingle  together  where  undue  influence  is  actually  exercised. 
Nor  is  undue  influence  dependent  on  fixed  principles  or  measured 
by  degree  or  exteni ;  but  by  its  effect  in  the  particular  case,  and  by 
a  comparison  of  the  two  minds  which  antagonize.  If  found  suffi- 
cient to  destroy  tIhe  testator's  free  agency  in  the  transaction  at 
issue,  it  mast  be  pronounced  undue  even  though  slight;  *  and  con- 
versely, where  the  testator  has  resisted  the  pressure  successfully, 
and  acted  for  himself,  there  is  no  undue  influence  whioh  in  any 
positive  sense  impairs  his  will. 

§  229.  To  invalidate  a  Will  for  Fraud,  Undue  Influence,  etc., 
Testator's  Free  Agency  must  be  overcome. 

To  invalidate,  therefore,  a  will  on  the  ground  of  fraud,  compul- 
sion, or  undue  influence,  such  conduct  must  be  of  such  a  character 
as  to  destroy  the  testator's  free  agency,  and  substitute  for  his  own 
another  person's  will.^     Thus  impontunity,  in  its  legal  acceptation, 

6.  Haydock  v.  Haydock,  33  N.  J.  unsound  in  mind,  may  be  such  as  to 
Eq.  494;  Layman  v.  Conrey,  60  Md.  excite  terror  and  make  him  execute 
286;  Mueller  v.  Pew,  106  N.  W.  840,  as  his  will  an  instrument  which,  if  he 
127  Wis.  228;  106  N.  W.  1129,  143  had  been  free  from  such  influence,  he 
Mich.  476;  91  N.  Y.  S.  1097;  John-  would  not  have  executed.  Imaginaiy 
son  V.  Farrell,  74  N.  E.  760,  215  111.  terrors  may  have  been  created  siiffi- 
542;  Turner's  Appeal,  44  A.  310,  72  cient  to  deprive  him  of  free  agency; 
Conn.  305.  ,a  will  thus  made  may  possibly  be  de- 

7.  Stewart  v.  Elliott,  2  Maekey  (D.  scribed  as  obtained  by  coercion." 
C.)    307.  Boyse  v.  Rossborough,  6  H.  L.  Oas.  6. 

8.  Haydock  v.  Haydock,  33  N.  J.  And  he  proceeds  to  state  certain  con- 
Eq.  494.  trivances    which    might    be    employed 

The   elements  of   fraud  or   coercion  in  the  course  of  exercising  undue  in- 

in  cases  of  undue   influence  must  be  fluence,    and    yet    have    a    fraudulent 

liberally   interpreted.      "The   conduct  character. 

of    a    person    in    vigorous    health    to-  9.  Mountain  v.  Bennett,  1  Cox.  355; 

wards   one    feeble   in   body,"   observes  Kinleside    v.     Harrison.     2     Plillim. 

Lord    Cranworth,    "even    though    not  551;    Gardner  v.   Gardner,   22   Wend. 

269 


229 


LAW  OF  WILLS. 


[PAET    II. 


here  imports  such  a  degree  of  urgent  and  incessant  soliciting  that^ 
under  all  the  circumstances,  and  considering  (the  testato^r's  condition 
of  mind  and  body  at  the  time,  it  should  be  concluded  that  be  was  too 
weak  to  resist  it,  and  his  disposition  could  not  be  deemed  the  free 
act  of  a  capable  testator.^  The  undue  influence  thus  exerted 
amounts  at  least  to  a  moral  coercion,  and  constrains  the  testator, 
through  fear,  the  desire  of  peace,  or  some  other  motive  than  affec- 
tion or  a  sense  of  duty,  to  do  that  which  was  really  against  his  will, 
and  usually  what  was  fair.^ 

On  the  other  hand,  mere  honest  argument  or  peirsuasion,  earnest 
solicitation,  and  such  influence  as  one  person  may  deservedly  ob- 
tain over  another  are  as  a  rule  insufficient  to  affect  the  validity  of 
a  will,  in  the  absence  of  decisive  fraud,  even  though  one  should  by 
such  means  procure  a  disposition  in  favor  of  himself  or  of  some 
one  else  whose  interest  he  has  maintained.^     And  a  will  induced 


536;  Marx  v.  McGlynn,  88  ^^  Y.  357 
Eckert  v.    Flowry,   43   Penn.    St.   46 
Rose  V.  Taylor,  45  111.  485;  Morris  v 
Stokes,  21  Ga.  552;  Sutton  v.  Sutton 
5    Barring.    469,    60    Am.    Dec.    650 
Duffield   V.    Morris,    2   Harring.    375 
McDaniel    v.    Crosby,    19    Ark.    533 
\Yhitman    v.    Goodhand.    26    Md.    95 
Layman  v.  Conrey,  60  Md.  286;  Hay 
dock  V.   Haj-dock,   33  N.  J.  Eq.   494 
Blakcy  v.  Blakey,  33  Ala.  611;   Tui 
ner  v.  Cheesman,   15  N.  J.   Eq.   243 
McFadin  v.  Catron,  120  Mo.   252,  35 
S.  W.   506;    Bulger   v.   Ross,   98   Ala. 
267,  12  So.  803:   Schmidt  v.  Sclimidt, 
47  Minn.  451,  50  N.  W.  598;  O'Brien's 
Appeal,    60    A.    880,    100    Me.     155; 
Bohler  v.  Hicks,  48  S.  E.  306,  120  Ga. 
800;   Stewart  v.  Lyons,  47  S.  E.  442, 
54  W.  Va.  665;   Crowson  v.  Crowson, 
72  S.  W.  1065,  172  Mo.  691;   Stull  v. 
Stull,  96  N.  W.  196,  1  Nev.  380;  Rick'.'? 
Estate,  117  P.  532,  160  Cal.  450,  467; 
RaJHon  V.  Raison,  146  S.  W.  400,  148 
Ky.   116;    105  Cal.  607,  133  P.  307. 


1.  See  Kinleside  v.  Harrison,  2 
Phillim.  551,  552,  by  Sir  John 
Nicholl;  Styles,  427;  Armstrong  v. 
Huddleston,  1  Moore  P.  C.  478; 
Clark  V.  Fisher,  1  Paige,  171;  Davis 
V.  Calvert,  5  Gill  &  J.  269,  25  Am. 
Dec.  282;  Baldwin  v.  Parker,  99  Mass. 
84,  9G  Am.  Dec.  697;  135  Ind.  440,  35 
X.  E.  279;  RoUwagen  v.  Rollwagen,^ 
63  N.  Y.  504;  Coit  v.  Patchen,  77  N. 
Y.  394,  33  Am.  Rep.  626;  Tawney  v. 
Long,  76  Penn.  St.  106;  Dale's  Ap- 
peal, 57  Conn.  127;  Thompson  v.  Ish, 
99  Mo.  160,  13  S.  W.  510,  17  Am.  St. 
Rep.  552. 

2.  Williams  v.  Goude,  1  Hagg.  581; 
Hall  v.  Hall,  38  Ala.  131;  Tawney  v. 
Long,   76  Penn.   St.   106;    §   225. 

3.  Swinb.  pt.  2,  §  4,  pi.  1;  Clapp  v. 
Fullerton,  34  N  Y.  197,  90  Am.  Dec. 
681;  Sutton  v.  Sutton,  5  Harring. 
459;  Dean  v.  Negley,  41  Penn.  St. 
312,  80  Am.  Dec.  620;  Roe  v.  Taylor, 
45  111.  485;  Howe  v.  Howe,  99  Mass. 
88;    Shailcr    v.    Bumstead,    99    Mass. 


270 


CHAP.    X.]  ERROR,  FR^iUD,  AND  UNDUE   INFLUENCE. 


§    229 


by  kind  offices  as  well  as  fair  argumemt,  is  not  for  such  reasons  to 
be  set  aside.*  The  influence  of  affection  and  attachment,  such  as- 
induces  the  desire  to  gratify,  is  not  undue  in  any  legal  sense.^ 
]Sror  do  fair  and  flattering  speeches,  though  abundantly  proved, 
vitiate  the  will,  unless  coupled  with  fraud.®  Nor  even  the  fact 
that  the  arguments  or  persuasions  of  the  person  seeking  a  chief 
benefit  by  the  will  were  indelicate,  indecorous,  or  improper.''  Nor 
that  such  a  party  passively  encouraged  the  testator's  angry  resent- 
ment towards  others  cut  off  eventually  in  his  favor.^  Nor  simply 
that  the  person  exerting  an  influence  had  illicit  sexual  intercourse 
with  the  testatrix.^    Nor  that  there  was  a  combined  persuasion  of 


112;  McDaniel  v.  Crosby,  19  Ark.  533; 
18  Hun  (N.  Y.),  403;  Hughes  v.  Mur- 
tha,  32  N.  J.  Eq.  288;  Miller  v.  Miller, 
3  S.  &  R.  267;  Yoe  v.  McCord,  74  111. 
33;  Schofield  v.  Walker,  58  Mich.  96, 
24  N.  W.  624;  Trost  v.  Dingier,  118 
Penn.  St.  259,  14  Am.  St.  Rep.  593, 
12  A.  796;  Smith  v.  Keller,  98  N.  E. 
214,  205  N.  Y.  39;  Robinson  v.  Stu- 
art, 73  Tex.  267,  11  S.  W.  275;  Wil- 
coxon  V.  Wilcoxon,  165  111.  454,  46  N. 
E.  369;  Kerr  v.  Lunsford,  31  W.  Va. 
6.59,  2  L.  R.  A.  668;  49  Ark.  367,  5  S. 
W.  590;  Pensyl's  Will,  157  Penn.  St. 
465,  27  A.  669;  Turner  v.  Anderson, 
139  S.  W.  180,  236  Mo.  523;  Rick's 
Estate,  117  P.  532,  160  Cal.  450; 
136  N.  Y.  S.  1086;    125  P.  1034. 

To  rule  to  a  jury  that  undue  in- 
fluence is  "  improper  influence  "  does 
not  express  the  legal  idea.  98  Mo. 
433,  11  S.  W.  974. 

4.  Gleespin's  Will,  26  N.  J.  Eq. 
523,  32  N.  J.  Eq.  701;  Rogers  v.  Dia- 
mond, 13  Ark.  474 ;  cases,  supra. 

5.  Williams  v.  Goude,  1  Hagg.  581; 
1  Wms.  Exrs.  47;  Shaul's  Will,  143 
N.  Y.  S.  433. 


6.  Swinb.  pt.  7,  §  4,  pi.  1;  1  Wms. 
Exrs.  47;  Small  v.  Small,  4  Greenl. 
220. 

7.  Newhouse  v.  Godwin,  17  Barb. 
236;  Tawney  v.  Long,  76  Penn.  St. 
106. 

8.  Woodward  v.  James,  3  Strobh. 
44. 

9.  Farr  v.  Thompson,  Cheves,  37;  1 
Rich.  80;  Roe  v.  Taylor,  45  111.  485; 
Wainwright's  Appeal,  89  Penn.  St. 
220;  Sunderland  v.  Hood,  84  Mo.  293; 
82  Ky.  93,  56  Am.  Rep.  880;  Ar- 
nault V.  Arnault,  52  N.  J.  Eq.  801; 
Johnson's  Estate,  159  Penn.  St.  630; 
Middleton's  Will,  64  A.  1134,  68  N. 
J.  Eq.  798;  85  N.  Y.  S.  294.  But  un- 
lawful cohabitation  may  be  evidence 
of  undue  influence  in  connection  with 
other  facts.  Wainwright's  Appeal, 
supra;  Main  v.  Ryder,  84  Penn.  St. 
217,  28  A.  448;  McClure  v.  McClure,. 
86  Tenn.  173,  6  S.  W.  44;  §§  22,  337a; 
Smith  V.  Henline,  174  111.  184,  51  N. 
E.  227. 

One  who  voluntarily  joins  a  re- 
ligious order  whose  by-laws  requir    a 


271 


§    230  LAW  OF  WILLS.  [pART    n. 

the  proper  beneficiaries.®^    In  all  such  instances  we  are  to  suppose 
tihat  tlie  testator's  free  agency  is  not  overcome. 

But  while  any  person  has  the  right  to  fairly  persuade  a  testator 
to  make  him  his  executor  or  a  beneficiary  under  his  will,  an  un- 
favarable  impression  is  afforded  where  the  testator  is  shown  to  be 
of  weak  judgment,  the  opportunity  for  undue  influence  consider- 
able, aud  the  benefit  to  the  persuading  party  under  the  will  far 
greater,  if  justifiable  in  any  degree,  than  a  testator  would  natu- 
rally bestow.^  And  wills  have  been  set  aside  for  the  importunities 
or  undue  pressure  of  intimate  friends  or  professional  or  spiritual 
advisers,  who  stand  with  the  decedent  in  peculiar  relations  of  con- 
fidence of  which  they  have  taken  an  unfair  advantage.^ 

§  230.  The  Same  Subject. 

In  the  absence  of  fraud  ot  imposition  or  undue  influence  of  some 
kind,  the  court  will  not  speculate  as  to  the  probable  motives  of  the 
testator.^  'Nor  is  fraud  or  imposition  to  be  imputed  solely  on  thet 
ground  that  the  testator  depended  much  upon  the  legatee  for  the 
management  of  his  affairs  and  attendance  to  his  personal  wants.* 
Indeed,  lawful  influence  such  as  grows  out  of  legitimate  or  social 
relations,  must  be  allowed  to  produce  its  natural  fruits  even  in 
wills.  The  presumption  favors  a  lawful,  rather  than  unlawful,  ex- 
ercise of  influence  imder  such  circumstances ;  and  the  exertion  of  a 
natural  influence  upon  the  testator  can  never  afford  adequate 
ground  of  itself  foT  setting  a  natural  testament  aside.^ 

But  fraud  or  artful  contrivance  by  which  others  who  are  inno- 
cent suffer  wrong  may  afford  good  reason  for  setting  aside  the  will, 
in  suoh  cases,  even  though  no  coercive  influence  should  appear. 

vow   tliat  all  one's  property  s'lall  be  4.  lb.;  Elliott's  Will,  2  J.  J.  Marsh, 

bestowed   upon   it   may   make   such    a  340. 

will  without  having  coercion  imputed.  5.  Small    v.    Small,   4   Me.    220,    16 

67  Minn.  3.35,  69  N.  W.  1090.  Am.   Dec.   253;    Donovan's  Estate,   73 

9a.  143  N.  Y.  S.  732.  P.  1081,  140  Cal.  390;  Sechrest  v.  Ed- 

1.  Walker  v.  Hunter,  17  Ga.  364.  wards,    4   Met.    (Ky.)    163;    Lowe   v. 

2.  See   §  246,  post.  Williamson,  2  N.  J.  Eq.  82;  Gilreath 

3.  Blecckcr  v.  Lynch,  1  Bradf.  453.  v.  Gilroatli,  4  .Jones  Eq.  142;   Norton 

V.  Pa.xion,  110  Mo.  456,  19  S.  W.  807. 

272 


CHAP.    X.]  EREOR^  FRAUD,  AND  UNDUE   INFLUENCE.  §    231 

As,  for  instance,  where  one  relative  has  produced  the  disinherit- 
ance of  another  hy  false  representations,  and  abused  peculiar  op- 
portunities of  access  to  color  as  he  likes  the  sick  man's  disposition.* 
Or  where  one  dictates  in  fact  the  will,  the  testator  being  at  the  time 
unable  to  speak,  and  falsely  pretends  to  interpret  the  dying  per- 
son's wishes  according  to  his  own.''  Or  where  by  false  representa- 
tions as  to  the  contents  of  an  existing  will  one  has  induced  the  tes- 
tator to  make  a  new  one.^  In  short,  the  will  should  be  the  hona 
fide  will  of  the  testator,  however  induced;  from  a  fraudulent  in- 
ducement no  one  should  ever,  if  possible,  be  suffered  to  profit  to  the 
injury  of  the  innocent;  and  a  will,  the  offspring  of  deception,  can- 
not stand,  any  more  than  the  offspring  of  constraint.^ 

§  231.  The  Same  Subject. 

Secrecy  in  the  execution  of  the  will,  if  clearly  attributable  to  the 
mind  and  wishes  of  the  testator,  is  no  badge  of  fraud.^  But  this 
and  all  the  circumstances  in  fact  which  we  have  pronounced  insuffi- 
cient of  themselves,  may  from  their  association  with  other  facta 
and  circumstances  of  the  case  become  of  pregnant  consequence 
upon  the  issue.  Thus  flattering  speeches,  may,  if  deceitfully  em- 
ployed to  direct  a  mind  tliat  has  lost  its  self-direction,  render  void 
the  wall  upon  which  they  have  operated.  And  while,  as  we  have 
seen,  neither  advice,  nor  argument,  nor  honest  and  moderate  inter- 
cession or  persuasion,  unaccompanied  by  fraud  or  deceit,  would 
vitiate  a  will  made  freely  and  from  conviction,  though  such  a  will 
might  not  have  been  made  but  for  such  influences,"  there  may  be, 
as  we  have  also  intimated,  an  overpowering  importunity  of  advice, 
of  argimient  or  intercession,  honestly  or  dishonestly  exercised,  but 
on  the  whole  inexcusably,  which,  in  view  of  the  testator's  feeble 

6.  Dietrick  v.  Dietrick,  5  S.  &  R.  8.  Moore  v.  Blauvelt,  15  N.  J.  Eq. 
207 ;  6  S.  &  R.  55 ;  Nussear  v.  Arnold,      G7. 

13  S.  &  R.  323.  9.  Florey  v.  Florey,  24  Ala.  241. 

7.  Scribner  v.  Crane,  2  Paige,  147,  1.  Coffin  v.  Coffin,  23  N.  Y.  9.  80 
21  Am.  Dec.  81.  And  see  Lowe  v.  Am.  Dec  235;  §  245;  43  N.  J.  Eq.  167. 
Williamson,    1    Green    Ch.    82;    Blan-  2.  Supra,  §  229. 

chard  v.  Nestle,  3  Denio,  37. 

18  273 


§  231a  LAW  OF  WILLS.  [pAirr  ii. 

condition  so  that  he  could  not  combat  it,  may  and  ought,  if  proved, 
to  avoid  a  disposition  made  in  consequence.^  Some  of  the  cases 
have  held  that  such  an  influence,  to  produce  so  disastrous  a  re- 
sult, must  have  been  consciously  exercised  with  a  view  to  the 
I'esult;  *  but  to  a  candid  mind  it  can  make  no  difference  in  favor 
of  the  will  that  the  party  thus  urging  it  was  so  carried  away  by  ex- 
citement or  blinded  by  selfish  motives  falsely  ascribed,  as  not  to  be 
conscious  of  the  over-pressure  he  brought  so  indiscreetly  and  un- 
fairly to  bear  upon  its  execution.  And  persuasion  used  in  ex- 
tremis, or  where  the  testator  is  on  his  death-bed,  is  of  all  instances 
of  persuasion  the  most  repulsive  to  a  court  of  justice.^ 

Less  undue  influence  and  less  fraud  are  required,  as  we  have 
seen,  to  procure  a  will  unlawfully  from  a  person  of  weak  and  im- 
paired intellect  and  physical  feebleness,  tlhian  from  a  person  in  full 
mental  and  bodily  vigor.® 

§  231a.  Bounty  distinguished  from  Legal  Duty,  in  Such  Issues. 

Undue  influence  should  not  be  readily  imputed  to  a  beneficiary, 

3.  See  Buchanan,  C.  J.,  in  Davis  v.  monk  asked  the  gentleman  if  he  would 
Calvert,  5  Gill  &  J.  301;  Brovpn  v.  give  such  a  manor  and  lordship  to  his 
Moore,  6  Yerg.  272;  53  A.  253,  203  monastery.  The  gentleman  answered 
Penn.  400.  yea.     Then,  if  he  would  give  such  and 

4.  1  Wms.  Exrs.  47,  Perkins's  such  estates  to  such  and  such  pious 
note;  Small  v.  Small,  4  Greenl.  220,  uses.  The  gentleman  answered  yea, 
16  Am.  I>ec.  253;  Martin  v.  Teaguo,  to  them  all.  The  heir-at-law,  observ- 
2  Sqiears,  268.  ing  the  covetousness  of  the  monk,  and 

5.  Dickinson  v.  Moss,  (1790).  4  that  all  the  estate  would  be  given 
Burn  58,  cited  1  Wms.  Exrs.  47.  See  from  him,  asked  the  testator  if  the 
oon.^piracy  of  undue  influence  in  monk  was  not  a  very  knave,  "  who 
Cowan  V.  Shaver,  95  S.  W.  200,  197  answered  yea."  And  upon  the  trial 
Mo.  203.  "  for   the   reasons   above   said,   it  Avas 

Swinburne    states    an    instance    of  adjudged   no   will."      Swinb.   pt.   2,   § 

oral  will   (aswills  of  personalty  were  25,  pi.  5. 

ff^irmerly    allowed    to    be    made)     to  6.  Reichenbach     v.     Ruddach,     127 

Hhow  that  a  dying  man's  answers  to  Penn.   St.    564,    18   A.   432 ;    Boyse  v. 

cjuc'Stions   put   by   crafty    and    impor-  Rossborough,  6  H.  L.  Oas.  6;  Robinson 

tunate    persons   ought    not   to   be   re-  v.  Robinson,  53  A.  253,  203  Penn.  400; 

reived   as   the   free   expression   of   his  Somers   v.  MeCready,  53  A.   1117,  96 

will    in    favor   of    such    persons.      Tlie  Md.  347;  53  A.  1125,  63  N.  J.  Eq.  630. 

274 


CHAP.  X.J    EEROK^  FRAUD^  AND  UNDUE  INFLUENCE.        §  232 

whose  object  is  to  claim  not  a  mere  bounty  under  the  will,  but  the 
settlement  thereby  of  a  lawful  claim  for  service  rendered ;  for  this 
is  simply  to  hold  him  to  his  legal  duty.' 

§  232.  Fraud,  Contraint,  and  Undue  Influence  relate  to  the  Time 
of  Execution ;  Constraint  removed  later. 
The  constraint  of  fraud  or  undue  influence  necessa.ry  to  set  aside 
a  will  must  be  a  present  restraint,  fraud,  or  undue  influence,  ope-' 
lating  upon  the  testator's  mind  in  the  very  act  of  making  the  will, 
and  affecting  its  execution  or  the  dispositions  it  makes.^  Contem- 
l^oraneous  threats  have  this  effect.^  But  w'hile  threats,  violence,  or 
any  undue  influence  exerted  in  the  past,  shown  as  isolated  facts, 
and  in  no  way  connected  with  the  testamentary  act,  cannot  be  ad- 
duced to  impeach  it,  conduct  of  this  sort  which  bears  upon  the 
execution  of  the  instrument  in  controversy,  and  is  directly  and 
immediately  connected  with  it,  though  somewhat  remote  as  to  tlhe 
point  of  occurrence,  may  aid  in  avoiding  the  will  upon  which  it 
operated.^  "The  undue  influence,"  it  is  well  observed,  "  must  be 
an  influence  exercised  in  relation  to  the  will  itself,  not  an  influence 
in  relation  to  other  matters  or  transactions.  But  the  principle 
must  not  be  carried  too  far."  ^     In  short,  undue  influence,  fraud  or 

7.  Westcott  V.  Sheppard,  51  N.  J.  R.  I.  255.  See  also  Boyse  v.  Ross- 
Eq.  315,  25  A.  254,  30  A.  428.  borough,  6  H.  L.  Cas.  6;  Ketjliura  v. 

8.  McMahon  v.  Ryan,  20  Peiin.  St.  Stearns,  76  Mo.  396;  99  S.  W.  909,  30 
339;    Eckert  v.  Flowry,  43  Penn.  St.  Ky.  Law,  948. 

40;  127  Penn.  St,  564,  18  A.  432;  117  2.  Lord     Cranworth     in     Boyse     v. 

€al.  288,  49  P.  192;   Pooler  v.  Crist-  Rossborough,  6  H.  L.  Cas.  6.    "Where 

man,  145  111.  405,  34  N.  E.  57.  a  jury  sees  that,  at  and  near  the  time 

9.  Moore  v.  Blauvcdt,  15  N.  J.  Eq.  when  the  will  sought  to  be  impeached 
367.  And  see  \Yoodman  v.  Illinois  was  executed,  the  alleged  testator 
Bank,  71  N.  E.  1099.  211  111.  578;  was,  in  other  important  transactions, 
iStruth  V.  Decker,  59  A.  727,  100  Md.  so  under  the  influence  of  the  person 
368;  Rick's  Estate,  117  P.  532,  160  benefited  by  the  will,  that  as  to  them 
Cal.  450,  467;  Martin  v.  Beatty,  98  he  was  not  a  free  agent,  but  was  act- 
N.  E.  230,  254  111.  148.  ing  under  undue  control,  the  eircum- 

1.  Of.  Davis  V.  Calbert,  5  Gill  &  J.  stances  may  be  such  as  fairly  to  war- 

269,  25  Am.  Dec.  282.  303.  with  Mc-  rant  the  conclusion,  even   in   the   ab- 

Mahon  v.  Ryan,  and  Eckert  v.  Flowry,  sence  of  evidence  bearing  directly  on 

supra;  Chandler  v.  Ferris,  1  Harring.  the  execution  of  the  will,  that  in  re- 

454;    Rutherford    v.    Morris,    77    111.  gard  to  that  also  the  same  undue  in- 

397;    Jencks   v.   Court  of   Probate,   2  fluence  was  exercised."     lb. 

275 


§    233  LAW  OF  WILLS.  [PART    II. 

restraint  cannot  of  itself  defeat  a  will  offered  foir  probate,  unless 
tlie  evidence  proves,  not  only  that  it  was  in  fact  exercised,  but  also 
that  its  exercise  was  effectual  in  producing  the  particular  will 
offered.2^ 

It  is  also  observable  that  if  the  alleged  fraud,  constraint  or  undue 
influence  was  actually  removed  after  the  will  was  made,  and  the 
testator  had  ample  oppoa-tunity  while  he  lived  to  revoke  if  he  saw 
fit  and  dispose  of  his  property  differently,  the  fact  that  he  makes 
no  such  effort  tends  to  negative  such  allegation.^ 

§  233.  Testament  need  not  originate  with  Testator ;  but  the  Will 
must  be  his. 
Our  testamentary  law  does  not  insist  that  the  making  a  will 
should  originate  with  the  testator;  nor  is  proof  to  that  effect 
requisite,  provided  it  be  shown  that  the  deceased  intended  the  in- 
strument as  his  own,  and  completely  understood,  adopted,  and 
sanctioned  whatever  disposition  was  proposed  or  suggested  to  him, 
and  embodied  in  that  instrument.*  But  if  any  part  or  clause  of 
the  will,  or  the  whole  instrument,  was  first  suggested  to  the  testa- 
tor by  any  other  person  and  adopted  by  the  testator,  such  adoption 
must  not  be  the  result  of  his  incapacity  or  weakness  of  mind,  nor 
of  fraud,  circumvention,  force,  or  undue  influence;  and  whether 
it  be  so,  the  trier  or  jury  must  decide  from  all  the  facts  and  cir- 
cumstances presented.^ 

2a.  See  229  111.  557,  82  N.  E.  365.  gree,  it  is  proscribed  that  the  testator 

3.  Coleman's  Estate,  185   Peim    St  shall,  at  all  events,  have  sufficient  ac- 

437,  443,  40  A.  69;  Mather's  Will,  56  tive   memory   to   collect   in   hia   mind, 

A.  982,  76  Vt:  209;   Dock  v.  Derk,  82  vrithout  prompting,  the  particulars  of 

N.  W.  293,  106  Wis.  470.  the   alleged  transaction.     Dolafield  v. 


4.  Constable  v.  Tufnell,  4  Hagg 
477;  s.  c.  on  appeal,  3  Knapp,  122 
Jones  V.  Jones,  14  B.  Mon.  464;  Tuni 
son  V.  Tunison,  4  Bradf.   (N.  Y  )   138 

5.  1)h\\h    v.    Calvert,    5    Gill    &    J 


Parish,  25  N.  Y.  10.  The  testator,  if 
not  originating  the  particular  will 
and  its  provisions,  should  at  least  be 
liorfoctly  capable  of  doing  so.  White's 
Will,  121  N.  Y.  406,  24  N.  E.  935.  See 


269.   25   Am.  Dec.  282.     Wo  have  al-      also   Chappell   v.   Trent,   90   Va.    849, 

rendy  seen  that  by  the  latest  test  np-      19  S.  E.  314. 

I)licd  to  mental  capacity  of  a  low  do-      19   S.  E.  314.  See,  furtlior,  08  N.  E. 

27G 


CHAP.    X.]  ERROR,  FRAUD,  AND  UNDUE   INFLUENCE.  §    235 

§  234.  A  Will  invalidated  for  Fraud,  Undue  Influence,  etc.,  fails 
as  to  All  whose  Benifit  is  procured, 
A  will  invalidated  for  fraud,  force,  or  undue  influence,  fails,  not 
only  as  to  the  person  exerting  it,  but  as  to  all  for  whom  a  benefit 
was  thereby  procured.^ 

§  235.  These  Maxims  applied  to  Parental  and  Filial  Relation. 

Threats  of  personal  estrangement  or  non-intercourse,  addressed 
by  a  child  ito  a  dependent  parent,  or  threats  of  litigation  between 
the  children,  may  thus  destroy  the  parental  disposition  upon  which 
they  operated.^  On  the  other  hand,  the  natural  influence  acquired 
by  one  in  the  parental  or  filial  relation  may  be  allowed  its  just  and 
natural  operation,  as  powerful,  beyond  that  of  the  mosit  intimate 
friends.^  A  parent's  will  is  not  to  be  set  aside  for  discriminating 
in  favor  of  dutiful  and  affectionate  adult  children  as  against  those 
who  have  failed  in  filial  duty  and  affection  or  have  willfully  op- 
posed the  parent's  wishes  or  behaved  with  harshness  and  disre- 
spect.^ More  than  'this,  the  natural  love  which  is  felt  for  one  child 
a;bove  another,  has  been  recognized  as  a  suificient  ground  for  testa- 
mentary preference.^ 

526,  204  111.  384;   Robinson  v.  Robin-  the  daughter,  to  whom  he  was  tend- 

son,  53  A.  253.  203  Penn.  400;  Sickles'  erly  attached. 

Will,  53  A.   1125.  64  N.  J.  Eq.   791;  8.  Lowe  v.  Williamson,  2  N.  J.  Eq. 

Hayes  v.  Hayes,  145  S.  W.  1155,  242  82;    Converse  v.  Mix,  115  P.  305,  63 

Mo.    155;    Hurd   v.   Reed,    102   N.   E.  Wash.    318;    Gilreath   v.    Gilreath,    4 

1048,  260  111.  104;  142  N.  W.  729,  122  Jones  Eq.  42;  Seehrest  v.  Edwards,  4 

Minn.  463.  Met.    (Ky.)    163;   Mason  v.  Williams,. 

6.  Davis  V.  Calvert,  5  Gill  &  J.  269,  60  N.  Y.  Supr.  398. 

25   Am.  Dec.   282.    Butt  see  post,   §§  9.  Pensyl's  Will,  157  Penn.  St.  465, 

248-250.  27   A.    669;    McFadin   v.    Catron,    12a 

7.  Moore  v.  Blauvelt,  15  N.  J.  Eq.  Mo.  252,  25  S.  W.  406;  65  N.  Y.  S. 
307.  In  Hartman  v.  Strickler,  82  Va.  605;  77  N.  Y.  S.  513;  54  A.  97,  64 
225,  a  will  in  a  son's  favor  was  set  N.  J.  Eq.  327;  Purdy  v.  Evans,  160 
aside,  where  it  appeared  that  the  tes-  S.  W.  1071,  156  Ky.  342  (child  twelve 
tator,    a   feeble   old   man,   lived    with  years  old). 

him  in  fear  and  subjection,  and  that  1.  McFadin  v.  Catron,  120  Mo.  252, 

the  son  had  threatened  to  whip  him      25   S.   VV.   506;   Hook's  Estate,  56   A. 
and   had   prevented   him   from   seeing      428,  207  Penn.  203. 

277 


§    23G  LAW  OF  WILLS.  [pART    IL 

§  236.  These  P/Taxims  applied  to  the  Marital  Relation;  a  Wife's 
or  Mother's  Influence,  etc.    . 

The  wife  lias  been  treated  with  a  marked  indulgence  in  testa- 
mentary cases  which  involve  issues  of  this  kind ;  out  of  considera- 
tion, as  it  would  appear,  to  her  sex  and  marital  position,  which  in- 
cline her  to  persuasive,  tender,  and  persistent,  rather  than  over- 
ruling methods  of  influence,  and  to  the  impression  which  popularly 
obtains,  moreover,  that  a  true  and  faithful  spouse  is  not  likely  to 
gain  more  under  her  husband's  will  than  she  really  deserves. 
Hence  a  wife's  pleading,  and  even  her  importunity  with  her  hus- 
band, seldom  avoids  a  will  made  under  its  influence,  so  long  as  it 
may  be  supposed  that  the  husband  weighed  what  she  proposed  and 
deliberated  for  himself,  and  that  she  practised  no  deception  upon 
him;  and,  generally  speaking,  a  wife  may  justly  influence  the 
making  of  her  husband's  will  for  her  own  benefit  or  that  of  others, 
so  long  as  she  does  not  act  fraudulently  or  extort  benefits  from  her 
husband  when  he  is  not  in  condition  to  exercise  his  faculties  as  a 
free  agent. ^  The  momentous  influence  which  a  spouse  may  wield 
in  this  closest  and  tenderest  of  all  relations  cannot  be  easily  im- 
peached as  fo'i"  undue  advantage,  especially  when  she  is  mother  or 
grandmother  of  the  next  of  kin. 

Yet  each  case  furnishes  its  own  criterion;  for,  after  all,  duress 
and  deception  are  the  sole  attributes  of  neither  sex.  If,  therefore, 
a  man  makes  a  will  in  his  sickness,  by  tlie  over-importunity  of  his 
wife,  to  the  end  he  may  be  quiet,  this  (says  Rolle,  C.  J.)  shall  be 
pronounced  a  will  made  by  constraint  and  not  a  good  one ;  ^    by 

2.  Mountain  V.  Bennett,  1  Cox,  355 ;  to    finally    determine    among    them) 

Parfitt   V.    Lawless,    2    P.    &   D.    462,  Ball's  Estate,  141  N.  W.  8,  153  Wis 

470;    Small  v.   Small,  4  Me.   220,   16  27;     Lide     v.     Lide,     2     Brev.     403 

Am.   Dec.   253;    Gardner   v.    Gardner,  Pierce  v.  Pierce,  38  Mich.  412;   Zim 

22  Wend.  526,  34  Am.  Dec.  340;  44  N.  merman  v.  Zimmernnn,  23  Penn.  St 

E.  17,  57  Am.  St.  Rep.  185,  32  L.  R.  375;    Moritz   v.   Brough,    16    S.   &   R 

A.  298;  Peterson's  Will,  48  S.  E.  561,  403;   Rankin  v.  Rankin,  61  Mo.  295 

L36  N.  C.   13    (property   left  to  wife  Hughes  v.  Murtba,  32  N.  J.  Eq.  701 

to    exclusion    of    testator's    collateral  Meeker  v.  Meeker,  75   111.  260;   Orth 

kin)  ;    29   App.  D.   C.   30    (all   left  to  v.  Orth,  145  Ind.  206,  42  N.  E.  277. 
wife  excluding  children  or  leaving  her  3.  Ilaeker  v.  Newborn,  SLyles,  427. 

278 


CHAP.  X.]    ERROR^  FRAUD^  AND  UNDUE  INFLUENCE.        §  2  30 

which  we  must,  however,  uiidorstand  that  his  free  agency  is  over- 
come/ And  if  the  wife's  efforts  were  specially  directed  to  pro- 
curing a  will  peculiarly  acceptable  to  herself  and  prejudicial  to 
others,  or  a  will  after  her  own  precise  dictation,  this  should  bo 
taken  against  her,  sooner  than  the  mere  use  of  that  ascendency  over 
a  husband  which  one  gains  by  her  virtues  and  devotion,  so  as  to 
win  a  reward  which  he  liberally  bestows  because  her  pleasure  has 
become  the  law  of  his  conduct.^  More  than  this,  when  a  wife's 
malevolence  against  an  own  child  causes  her  to  unduly  influence 
the  husband  and  father  to  disinherit  that  cliild,  the  will  should 
not  stand. ^ 

A  mother's  influence  is  not  likely  to  be  unwisely  exercised  as 
between  her  own  children;  but  where  the  claims  of  step-children 
conflict  with  those  of  her  own  offspring,  her  kindred,  or  hereelf, 
undue  influence  or  frauid  may  be  more  readily  inferred  from  her 
suspiciouis  conduct.  Upon  such  an  issue  it  is  competent  to  show 
that  no  foundation  existed  fo>r  excluding  children  of  the  former 
wife  from  participation  in  their  father's  estate;  "^  at  the  same  time 

4.  Gardner  v.  Gardner,  22  Wend.  tives,  to  the  end  that  these  impres- 
526,  34  Am.  Dec.  340,  cases  supra.  sions,   which   she  knows   he  had   thus 

5.  Small  V.  Small,  4  Me.  220,  16  formed  to  their  disadvantage,  may 
Am.  Dec.  253.  And  see  Beaubien  v.  never  be  removed:  such  contrivance 
Cicotte,  12  Mich.  459.  may,   perhaps,  be  equivalent  to   posi- 

6.  Evidence  that  in  a  personal  tive  fraud,  and  may  render  invalid 
quarrel  with  that  child  slie  thre-.tened  any  will  under  false  impressions  thus 
to  have  her  disinherited  wholly  before  kept  alive."  Boyse  v.  Rossborough, 
the  will  was  executed  is  competent.  6  H.  L.  Cas.  6,  per  Lord  Cranworth. 
Ferret  v.  Ferret,  131  Fenn.  St.  131.  But  his  lordship  proceeds  to  admit 
Gifts  from  parent  to  child  are  not  that  it  is  extremely  difficult  to  state 
held  in  suspicion.  Yess  v.  Yess,  99  in  the  abstract  what  acts  will  consli- 
N.  E.  687,  255  111.  414;  137  N.  W.  954.  tute  undue  influence.     And  see  White 

7.  Mullen   v.   Helderman,   87   N.   C.  v.  White,  2  Svv.  &  Tr.  505. 

471.  It    is    also    stated    in   this   case    by 

"  As   to  fraud,   if  a  wife,  by  fal?e-  Lord  Cranworth,  that  the  difficulties 

hood,    raises   prejudices   in   the   mind  of  defining  the  point  at  wliich  iuflu- 

of    her    hus.band    against    those    who  ence   exerted   over    a   testator's   mind 

would  be  the   natural   objects   of   his  becomes  so  pressing  as  to  be  properly 

bounty,     and     by     contrivance    keeps  described  as  coercion  are  greatly  en- 

him   from   intercouise   with   his   rela-  hanced  when  the  question  is  one   be- 

279 


§    236  LAW   or  WILLS.  [pAET    II. 

that  mere  inequality  in  distributing  between  tbe  children  of  two 
marriages  does  not  prove  undue  influence.^  In  mea'cenary  mar- 
riages, of  which  those  of  old  and  wealthy  men  with  a  second  wife 
furnish  numerous  examples,  whatever  shows  heartlessness  on  the 
vvdfe's  part  towards  either  the  testator  or  those  justly  entitled  to 
share  witih  herself  in  his  bounty,  mu£t  needs  prejudice  her  case,^ 

On  the  other  hand,  the  wife  of  a  later  marriage  may  be  found 
seeking  to  set  aside  a  will  on  the  ground  that  her  husband's  father 
or  the  children  of  a  former  marriage  unduly  influenced  tlie  testa- 
tor against  her.-^  Such  a  complaint,  and  the  complaint  of  any  wife 
against  her  husband's  will,  may  involve  an  inquiry  into  her  con- 
duct and  character;  for  if  she  was  ptroved  unfaithful  and  unde- 
serving, she  would  have  little  but  her  legal  rights  left  to  stand 
upon,  though  these  in  our  modem  practice  would  usually  be  found 
ample  enough.  The  influence  of  a  lawful  wife,  we  may  add,  is 
differently  regarded  from  that  of  one  who  has  cohabited  illegally 
witih  the  testator;  for  while  one  of  the  latter  kind  may  not  be  ut- 
terly debarred  from  taking  under  her  paramour's  will,  the  lawful 
kindred  and  natural  objects  of  his  bounty  (especially  if  children 
or  issue)  might  nevertheless  oppose  any  will  as  unduly  procured 
by  her  influence,  which  displaces  them  for  her  benefit,  for  the  very 
reason  that  sexual  influence  is  so  pervading  and  powerful.^  The 
influence  of  a  mistress  is  more  apt  to  be  undue  than  that  of  a  wife, 
because  its  bias  is  positive  in  the  direction  of  perverting  one's  tes- 

tween  husband  and  wife.     "  The  rela-  Raison,   146  S.   W.  400,   148  Ky.   116 

tion  constituted  by  marriage,"  he  ob-  (second  wife). 

serves,  "is  of  a  nature  which  makes  9.  Harrel    v.    Harrel,    1    Duv.    203; 

it  as  difficult  to  inquire,  as  it  would  139  N.  Y.  S.  185;  Reynolds  v.  Adams, 

be    impolitic  to   permit   inquiry,   into  90   111.    134,   32   Am.   Rep.    150.      See 

all  which  may  have  passed  in  the  inti-  Cheney  v.  Goldy,  80  N.  E.  289,  225  111. 

mate  union  of  afTections  and  interests  394,  116  Am.  St.  Rep.   145;    Tyner's 

which  it  is  the  paramount  purpose  of  Estate,  106  N.  W.  898,  97  Minn.  181 

that    connecton    to    cherish."     Boyse  (exclusion  of  own  children  in  favor  of 

V.  Rossborough,  supra.  wife's  relatives)  ;   102  N.  E.  4S7,  21S 

8.  Xicewander    v.   Nicowandor,    151  Mass.  164. 
111.  156,  37  N.  E.  698.     See  Raison  v.  1.  Gaitlier  v.  Gaither,  20  Ga.  709. 

2.  See  §  237a. 

280 


<JilAP.    X.]  EEKOR^  FIL^VUD^  AND  UNDUE  INFLUENCE.  §    238 

tamentary  disposition  from  the  natural  legal  channels.^  But  if 
one  marries  liis  mistress  'tlte  former  illicit  relation  should  not 
prejudice  her  right  to  influence  him  as  his  lawful  wife.*  "Wills  in 
fine  have  been  set  aside  for  the  fraud  and  deception  of  the  wife. 

§  237.  The  Same  Subject:    a  Husband's  Influence. 

Undue  influence  may  he  more  readily  predicated  of  a  husband 
over  his  wife  than  of  a  wife  over  her  husband.^  But  the  wisdom 
and  policy  of  preserving  the  confidence  of  the  marriage  relation 
inviolate  bear  against  a  suspicions  scrutiny  in  the  case  of  either 
spouse.  A  husband's  undue  influence  over  his  wife's  will  is  rarely 
established.'' 

Where  a  woman  left  her  estate  to  the  man  who  lived  with  her 
as  her  husband,  knowing  of  his  former  relations  with  another 
woman,  but  not  perhaps  that  the  other  woman  was  his  lawful  wife, 
such  ignorance  on  her  part  was  held  insufficient  for  setting  her  will 
aside.^ 

§  237a.  Existence  of  an  Illicit  Relation. 

It  seems  fair  to  assort  on  the  whole  that  while  the  existence  of 
an  illicit  and  immoral  relation,  mutually  understood,  between  the 
testator  and  his  beneficiary,  does  not,  as  a  matter  of  law,  raise  a 
presumption  of  undue  influence,  yet    undue    influence,  upon  the 

3.  See  McClnre  v.  McClure.  86  to  his  wife's  whole  personal  estate, 
Tenn.  174;  §  229,  supra.  and  regarded  the  wife's   will  as  gen- 

4.  Maynard  v.  Tyler,  168  Mass.  107,  erally  of  no  effect  without  her  hus- 
46  N.  E.  413.  As  to  marrying  one's  band's  permission,  we  have  elsewhere 
housekeeper,  see  168  111.  488,  48  N.  E.  seen.     Supra,  §  45. 

96.      Mere    inequality    in   the    age    of  7.  See  Armstrong  v.  Armstrong,  63 

husband   and   wife,   as   where   an   old  Wis.  162,  23  N.  W.  407;   56  N.  J.  Eq. 

man  marries  a  woman  less  than  half  365,  39  A.  536;   Morrison  v.  Thrman, 

his   age,   raises   no  unfavorable   influ-  89  S.  W.  409,  99  Tex.  409. 

cnce  by  itself.    83  Md.  356,  35  A.  64.  8.  Donnelly,  Re,  68  Iowa,  126,  26  N. 

5.  Scribner  v.  Crane,  2  Paige,  147.  W.  23. 

6.  Marsh  v.  Tyrrell,  2  Hagg.  84;  Tliat  a  husband's  undue  influence 
supra.  §  60.  See  Tawney  v.  Long,  76  may  vitiate  his  wife's  wiil,  see  supra, 
Penn.  St.  106.  That  the  earlier  rule  §  60;  Nedby  v.  Nedby,  11  E.  L.  &  Eq. 
of  our  law  favored  the  husband's  right  106 ;  Marsh  v.  Tyrrell,  2  Hagg.  84. 

281 


§    238  LAW   OF  WILLS.  [PAET    IL 

proof,  is  more  readily  inferred  than  where  the  relation  between  the 
parties  was  lawful,  or  on  one  side,  at  least,  supposed  so.^ 

§  238.  Fraud,  Undue  Influence,  etc.,  must  have  taken  effect: 
Natural  or  Unnatural  Will,  etc. 
The  fraud,  force,  or  undue  influence  we  are  considering  must 
not  have  been  practised  alone;  it  must,  besides,  have  taken  effect, 
misleading"  or  overcoming  ithe  testator.^  It  must  have  induced  the 
will,  or  at  least,  have  affected  the  provisions  of  the  will  in  essential 
particulars;  it  must  have  substituted  something  fraudulently  of 
which  the  testator  itook  no  intelligent  cognizance,  or  by  a  sort  of 
duress  extorted  from  him  an  unwilling  disposition,  or  by  some 
method  more  insidious,  turned  the  natujral  current  of  his  interests 
and  affections  into  some  strange  and  contrary  channel.  It  must 
have  produced,  in  short,  a  disposition  differing  essentially  from 
what  the  testator  would  have  made  if  left  free  to  act  for  himself. 
Hence  it  is  always  a  material  and  often  a  decisive  circumstance, 
where  fraud,  force,  or  undue  influence  is  charged,  that  the  instru- 
ment of  itself  attempts  an  unjust,  partial,  and  unnatural  disposi- 
tion of  the  decedent's  e-state.  For  if  the  disposition  appear  on  the 
whole  a  just  and  reasonable  one,  or  even  such  as  the  testator  wovdd 
naturally  have  made,  under  all  the  circumstances,  with  a  due  per- 

9.  Smith   V.   Hcnline,   174   I;I.    184,  That    unlawful    cohabitation     does 

51  X.  E.  327.  See  Dean  v.  Negley,  41  not   usually   of   itself   vitiate    a   will, 

Penn.   St.   312,   80  Am.   Dec.   620,   51  see  §§   22,  229;   Norton  v.  Clark,  97 

A.    501;    Kessinger   v.    Kessinger.    37  N.  E.  1079,  255  111.  557. 

Md.  341;  Monroe  v.  Barclay,  17  Oh  o  But  evidence  of   an   illicit  relation 

St.   302;   Nussear  v.  Arnold,  13   S.  &  is  admissible  as  a  fact  to  be  considered 

R.  323,  95  Wis.  331;    Langford's  Es-  with  other  facts  tending  to  show  un- 

tate,   108   Cal.   608,  55   A.  747,  25  R.  due  influence.     lb.     See  also  Alford  v. 

1.305.  Johnson,     146     S.     W.     516     Ark.); 

Unlawful     cohabitation     with     the  Phillips    v.    Phillips,    148    S.    W.    51, 

mother   of  an   illegitimate  child   does  149  Ky.  206;   128  N.  Y.  S.  186;  Sny-- 

not   of   itself   import  undue   influence  der   v.   Erwin,   79  A.   124,  229   Penn. 

in    favor   of   giving   a   legacy   to  that  644. 

child.     Rudy  v.  Ulrich,  69  P^nn.   St.  1.  See    Shailer     v.     Bumstead,     99 

177,   80  Am.   Rep.   238,   61   N.    Y.   S.  Mass.  121;   §  232,  supra. 
1065. 

282 


CHAP.    X.J  ERROR^  FRAUD^  AND  UNDUE   INFLUENCE.  §    239 

ception  of  the  act  engaged  in,  the  property  possessed,  and  the  fit 
claimants  to  his  bountj,  little  remains  to  mrge  against  the  will 
unless  it  can  be  positively  shown  that  'the  will,  notwithstanding, 
was  not  that  of  the  alleged  testator.  No  will  can  be  attacked  for 
fraud,  force,  or  undue  influence,  unless  some  one  is  wronged  by  it; 
and  no  one  is  wronged,  be  the  disposition  fair  or  unfair,  on  general 
principles,  unless  worse  off  under  the  will  in  question  than  with- 
out it.  But  a  w^ill  should  be  natural ;  and  by  this  our  law  infers 
not  so  much  natural  in  the  sense  of  conformity  to  our  average 
human  nature,  as  natural  because  conformable  in  the  concrete,  to 
the  nature  and  disposition  of  the  person  who  made  it. 

Whether,  then,  the  will  were  contested  for  incapacity  or  for 
fraud  or  undue  influence,  it  is  always  proper  to  inquire  whether 
the  provisions  of  the  will  are  just  and  i-e-asouable,  and  accord  with 
the  state  of  the  testator's  family  relations,  or  the  contrary ;  for  if 
they  are,  that  circumstance  is  decidedly  favorable  to  sustaining  the 
will ;  while,  on  the  other  hand,  if  it  makes  an  inequitable  distribu- 
tion of  the  property,  or  one  quite  different  from  what  was  natu- 
rally to  be  expected,  this  circumstance  tends  in  the  opposite  direc- 
tion.^ And  in  ow^  present  connection  this  may  involve  two  in- 
quiries: one,  whether  the  alleged  testator  while  clearly  sound  and 
under  no  constraint  cherished  essentially  different  intentions  from 
those  expressed  in  the  instrument  under  consideration;  the  otlier 
and  more  general  one,  whether  the  intentions  here  expressed  are 
just  and  natural,  taking  the  soimd  and  free  testator  as  his  own 
criterion.      Then,  of  course,  remains  the  third  inquiry,  whether  the 

2.  Fountain  v.   Brown,   38  Ala.  72;  1108,   123    Iowa,   246;    Martin's    Will. 

Pooler    V.     Cristman,     145    111.     405;  144  N.  Y.  S.  174. 

England   v.   Fawbush,   68   IST.   E.   526,  A    will   disposing   quite   differently 

204   111.    384.      Cf.      Journeay's   Will,  from  what  was  asked  repels  the  idea 

57  N.   E.  1110,   163  N.  Y.   595    (son-  of  undue  influence.     Gilman  v.  Aver, 

in-law  of  testatrix  a  beneficiary  above  52  A.  1131,  63  N".  J.  Eq.  806.     As  to 

her   issue);    70  P.  908,  42  Ore.  345;  an  unequal  or  unjust  will,  see  Singer 

Hughes   V.   Rader,   82   S.   W.   32,    183  v.   Taylor,    133   P.   841,   90   Kan.   285 

Mo.  630;  Townsend's  Estate,  97  N.  W.  (not   per  se   presuming  undue   influ- 
ence) ;  84  A.  28,  119  Md.  448. 

283 


§    238  LAW   OF  WILLS.  [PAKT    II. 

party  suspected  of  influence  or  fraud,  derives  from  tliis  will  some 
undue  advantage.  Thus,  if  the  pii'ovisions  of  a  will  executed  by 
some  old,  feeble,  and  dependent  person  should  be  shown  to  differ 
essentially  from  his  previously  known  intentions  or  declarations 
while  in  full  mental  vigor,  the  difference  being  in  favor  of  those 
who  stood  in  confidential  relations  with  him,  and  the  will  itself 
grossly  unequal,  these  circumstances  would  bear  strongly  against 
sustaining  it.^  Gross  and  unaccountable  inequalities  in  the  dis- 
position of  a  will  require  in  general  some  satisfactoiry  evidence, 
that  it  was  the  free  and  deliberate  offspring  of  a  rational,  self- 
poised  and  clearly  disposing  mind ;  and  when  such  evidence  is 
wanting,  the  will  should  be  set  aside.*  And  the  fact  tliat  strangers 
in  blood  receive  the  testator's  whole  property,  to  the  exclusion  of 
family  and  near  kindred,  is  a  suspicious  circumstance,  if  such 
strangers  stood  in  a  position  where  opportunities  to  dictate  the 
disposition  might  have  been  abused.^  The  harmony  of  the  will 
with  the  testator's  habitual  disposition  and  affections,  while  physi- 
cally and  mentally  sound,  is  thus  eminently  worthy  of  considera- 
tion.® 

But  circumstances  vastly  important  in  connection  with  other 
facts,  may  weigh  little  by  themselves;  and  no  suspicion  of  undue 
influence,  force,  or  fraud  can  rest  upon  simple  proof  that  the  last 
will  differed  in  tenor  from  the  testator's  pireviously  declared  in- 
tentions.^    For  what  testator  may  not,  and  does  not,  change  his 

3.  Thompson's  Will,  13  Phila.  403;  491;  Chappel  v.  Trent,  90  Va.  849, 
Wilson's  Appeal,  99  Penn.  St.  545;  19  S.  E.  314;  Credille  v.  Credille,  51 
Fountain  v.  Brown,  38  Ala.  72;  Weir  S.  E.  628,  123  Ga.  673,  107  Am.  St. 
V.  Fitzgerald,  2  Bradf.  (N.  Y.)  42;  Rep.  157  (code);  Walls  v.  Walls,  99 
Walker  v.  Hunter,  17  Ga.  364;  S.  W.  969,  30  Ky.  Law,  948;  Cunniff 
Mitchell's  E-tate,  43  Minn.  73;  Per-  v.  Cunniff,  99  N.  E.  654,  255  111.  407. 
kins  V.  Perkins,  90  N.  W.  55,  116  6.  See  Marx  v.  McGlynn,  88  N.  Y. 
Iowa,  253;  Slater  v.  Slater,  58  A.  357;  Frush  v.  Green,  86  Md.  494,  39 
267,  209  Pcnn.  194.  A.  863;  Harp  v.  Parr,  168  111.  459,  48 

4.  Harrel    v.    Harrel,    1    Duv.    203;  N.  E.  113. 

Gay  V.  Gillilan,  92  Mo.  250,  1  Am.  St.  7.  Wood  v.  Bishop,  1  Dem.   (N.  Y.) 

Rep.  712.  113,  512.     A  seeming  injustice  in  the 

5.  Cranur    v.    Crumbuugii,    3    Mrl       will     may    sometimes    be     explained. 

2S4: 


CHAP.  X.]    ERROR^  FRAUD^  AND  UNDUE  INFLUENCE.        §  239 

intentions  ?  But  the  force  of  the  fact  that  there  was  a  change 
of  testamentary  intention  depends  mainly  upon  its  connection  with 
other  facts;  a  change  may  be  rationally  or  irrationally  made;  and 
if  it  appears  on  the  whole  that  the  will  was  the  free  act  of  a  com- 
petent testator,  the  justice  or  injustice  of  its  provisions,  even  to 
tlie  disinheritance  of  offspring,  cannot  be  alleged  to  defeat  it.  In 
shoTt,  if  the  testator  made  a  change  upon  reasons  satisfactory  to 
himself,  it  is  no  ground  for  setting  the  will  aside,  that  those  rea- 
sons would  seem  inadequate  to  the  court.^  Yet,  if  reasons  cannot 
be  shown,  and  some  change,  some  perversion  appears  unexplained, 
while  the  instrument  discloses  on  its  face  a  manifestly  unjust,  un- 
natural, and  partial  scheme  of  distribution,  and  more  especially 
one  which  favors  those  having  free  access  to  the  testator  and  full 
opportunity  for  fraud  or  overbearing  influence,  to  the  exclusion  of 
those  who  had  not,  the  general  repugnance  felt  by  mankind  to  wills 
harsh  and  unnatural  may  well  resolve  all  final  doubts  and  condemn 
it.' 

§  239.  Burden  of  Proof,  as  to  Fraud,  Force,  or  Undue  Influence. 

The  burden  of  proving  fraud  or  force  in  the  procurement  of  a 
will  (unlike  the  simple  issue  of  testamentary  capacity^)  lies  upon 
those  who  contest  the  instrument;  and  anything  which  imputes 
heinous  misconduct  to  a  party  concerned  and  interested  in  its 
execution  ought  to  be  fairly  established  by  a  preponderance  of 
proof.^  As  to  undue  influence,  in  the  usual  and  less  offensive 
sense,  the  burden  of  proving  affirmatively  that  it  operated  upon  the 
will  in  question  lies  still  on  the  party   who    alleges  it,  either  by 

Lancaster  v.  Alden,  58  A.  633,  26  R.  199;     Martin    v.    Teague.    2    Spears, 

I.  170;   Dudderar  v.  Dudderar,  82  A.  268;   Taylor  v.  Wilburn,  20  Mo.  306, 

453,  116  Md.  605.  64  Am.  Dec.  186. 

8.  Horn  v.  Pullman,  72  N.  Y.  269;  1.  l^upra,  §  170,  etc. 

Gleespin's  Will,  26  N.  J.  Eq.  523.  2.  «ird  v.  Bird,  2  Hagg.   142;   Ha- 

9.  That  unjust  wills,  procured  hy  gan  v.  Yates,  1  Dem.  (N.  Y.)  584; 
the  exertion  of  an  influence  not  pal-  Stoutenburgh  v.  Hopkins,  43  N.  J. 
pably  undue,  may  yet  fail  readily  Eq.  577,  12  A.  689.  Conspiracy  is 
from  these  combined  circumstances,  not  readily  suspected,  47  N.  J.  Eq. 
see   Marshall    v.    Flinn,    4    Jones,    L.  244,  20  A.  875. 

285 


239 


LAW  OF  WILLS. 


[part  IL 


direot  evidence  or  proof  of  circumstances  inconsistent  with  fair 
dealing.^  In  any  such  case,  however,  we  assume  that  it  has  already 
been  proved  satisfactorily  by  the  proponents  that  the  will  had  been 
duly  executed  by  a  person  of  competent  understanding  and  appar- 
ently a  free  agent.*  "  In  order  to  set  aside  the  will  of  a  person  of 
sound  mind,"  observ^es  Lord  Cranworth,  "  it  is  not  sufficient  to 
show  that  the  circumstances  attending  its  execution  are  consistent 
with  the  hypothesis  of  its  having  been  obtained  by  undue  influ- 
ence; it  must  be  shown  that  they  are  inconsistent  with  a  contrary 
hypothesis,"  ^  And  the  same  holds  true  where  positive  fraud  or 
force  is  the  ground  of  objection.®  For  a  testator  adjudged  com- 
petent to  make  a  will  may  be  presumed  to  have  known  and  in- 
tended its  contents. 

Hence  is  it  that  isolated  and  disconnected  circumstances  are  not 
permitted  to  outweigh  the  usual  presumption  of  the  law  that  a 
person  of  intelligence  and  capacity  who  executes  a  will  does  so 
without  imposition  or  undue  influence.     Thus,  the  simple  fact  that 


3.  Boyse  v.  Rossborough,  6  H.  L. 
Gas.  6;  Glover  v.  Hay  den,  4  Cush. 
580;  Tyler  v.  Gardiner,  35  N.  Y.  559; 
Jackson's  Will,  26  Wis.  104;  Web- 
ber V.  Sullivan,  58  Iowa,  260,  12  N. 
W.  319;  Rees  v.  Stille,  38  Penn.  St. 
138;  Richmond's  Appeal,  59  Conn. 
226,  22  A.  82,  21  Am.  St.  Rep.  85; 
Morton  v.  Heidorn,  135  Mo.  SOS,  37 
S.  W.  504;  136  Mo.  414,  37  S.  W. 
1127;  Livingston's  Appeal,  63  Conn. 
68,  26  A.  470;  Hess's  Will,  48  Minn. 
504,  51  N.  W.  614,  31  Am.  St.  Rep. 
€65;  115  N.  W.  236,  137  Iowa,  613; 
Meir  v.  Butchter,  94  S.  W.  883,  197 
Mo.  98,  104  N.  W.  452,  128  Iowa, 
496;  70  S.  W.  136,  169  Mo.  631; 
Swearingen  v.  Inman,  65  N.  E.  80, 
198  111.  255;  62  N.  E.  907,  194  111. 
408;  Freeman  v.  Freeman,  76  S.  E. 
mi ;  137  N.  Y.  S.  635  ;  Johnson's  Will, 
85  A.  254,  80  N.  J.  Eq.  525;   Pepper 

286 


V.  Martin,  92  N.  E.  77,  175  Ind.  580^ 
Mordecai  v.  Canty,  68  S.  E.  1049, 
86  S.  C.  470;  139  S.  W.  188,  236  Mo. 
649;  142  N.  W.  729,  122  Minn.  463. 
Cf.  Edgerly  v.  Edgerly,  62  A.  716, 
73  N.  H.  407  (a  rule  somewhat  pecu- 
liar). 

The  cases  in  the  latest  reports  ap- 
plying the  principles  of  the  text  are 
very  numerous  ( 1915 ) . 

4.  See  preceding  chapter;  Baldwin 
V.  Parker,  99  Mass.  79,  96  Am.  Dec. 
697. 

5.  Boyse  v,  Rossborough,  6  H.  L. 
Cas.  6. 

6.  See  Marx  v.  McGlynn,  88  N.  Y. 
357;  Fritts  v.  Denemberger,  12  N.  J. 
Eq.  129;  Brown  v.  Mitchell,  75  Tex. 
9,  12  S.  W.  954.  Local  statutes  bear 
sometimes  upon  such  controversies. 
54  Conn.  119,  6  A.  198. 


CHAP.  X.]    ERROR,  FRAUD,  AND  UNDUE  INFLUENCE. 


240 


the  later  will  modifies  an  earlier  one  in  favor  of  one  who  drew  it 
up  is  held  insufficient  to  overcome  such  a  presumption.''  Or,  gen- 
erally, that  the  testator's  draughtsman,  or  one  whose  advice  was 
sought  by  him,  was  made  executor  or  receives  a  legacy  under  the 
will.^  Or  that  the  will  itself  differs  in  tenor  from  former  wills  of 
the  testator.^  Or  that  legitimate  influence  was  exercised  by  the 
party  who  derives  a  benefit.^  Or  that  peculiar  opportunities  for 
secretly  directing  the  testator  existed.^  For  undue  inflence  must 
he  not  only  alleged  but  proven.^  Inequality  in  distribution  does 
not  prove  undue  influence,  though  its  tendency  may  be  considered 
in  that  direction.*  As  for  forgery,  undue  influence,  and  fraud, 
in  obtaining  the  testator's  signature  to  a  different  instrument  from 
that  which  he  intended  to  sign,  these  are  offences  too  grave  to  be 
lightly  inferred  from  circumstances  which  are  capable  of  an  in- 
nocent construction.^     If  the  provisions  of  the  will  are  natural  and 


7.  Booth  V.  Kitchen,  3  Redf.  (N. 
Y.)   52;   Struth  v.  Decker,  59  A.  727, 

100  Md.  368.  Cf.  Selleck's  Will,  125 
Iowa,  678,  101  N.  W.  453;  57  Conn. 
127,  17  A.  757;  25  Neb.  535,  41  N. 
W.   354. 

8.  Post  V.  Mason,  91  N.  Y.  539,  43 
Am.    Rep.    689;    Wilson    v.    Mitchell, 

101  Penn.  St.  495;  Berberet  v.  Ber- 
beret,  131  Mo.  399,  33  S.  W.  61,  52 
Am.  St.  Rep.  634.     See  §  245,  post. 

9.  Wood  V.  Bishop,  1  Dem.  (N.  Y.) 
512.  Cf.  147  111.  370,  35  N.  E.  150. 

1.  See  §  229. 

2.  Dale's  Appeal,  57  Conn.  127;  25 
Neb.  535:  Kellan  v.  Kellan,  101  N. 
E.  614,  258  111.  256. 

3.  Coffraan  v.  Hedrick,  32  W.  Va. 
119. 

4.  Francis  v.  Wilkinson,  147  111. 
370,  35  N.  E.  150;  151  111.  106,  37 
N.  E.  837;  150  Mich.  322,  114  N.  W. 
218;  Heath  v.  Koch,  66  N.  E.  1110, 
173  N.  Y.  629;  Donnan  v.  Donnan, 
99  N.  E.  931,  256  111.  244;  Rliea  v. 
Madison,  151  S.  W.  667,  151  Ky.  262 

28' 


No  presumption  of  undue  influence 
rises  from  the  mere  fact  that  the  sole 
or  chief  beneficiary  is  not  a  blood 
relative.  Thompson  v.  Peterson,  137 
N.  Y.  S.  635,  100  N.  E.  789,  207  N. 
Y.  220.  Or  that  cousins  or  other  distant 
relatives  were  not  equally  provided 
for.  Campbell's  Will,  136  N.  Y.  S. 
1086  (especially  where  the  property 
given  by  the  will  had  not  come 
through  a  common  stock).  Or  that 
all  or  most  of  the  estate  was  given 
to  charity,  exclusive  of  relatives. 
Any  disposition  which  cuts  off  the 
natural  objects  of  one's  bounty  is 
only  a  circumstance  to  be  considered, 
where  undue  influence  is  alleged. 
Cunniff  &  Cunniff,  99  N.  E.  654,  255 
111.  407;  13€  N.  Y.  S.  1059;  Clark  v. 
Young,  142  S.  W.  1032,  146  Ky.  377; 
Lisle  v.  Couchman,  142  S.  W.  1023, 
146  Ky.  345    (threats  also  made). 

5.  Hagan  v.  Yates,  1  Dem.  (N.  Y.) 
584  :  47  X.  J.  Eq.  244.  Cf.  95  S.  W.  200, 
197  Mo.  203 


239 


LAW   OF  WILLS. 


[part   II. 


consistent  with  the  testator's  understood  wishes,  and  all  the  more 
where  those  charged  with  exerting  undue  injQuence  derive  no  ad- 
vantage from  the  will,  the  sitrongest  proof  of  misconduct  should  be 
required.^  And  where  the  proof  fails  to  connect  the  beneficiary 
in  any  way  with  the  making  of  the  particular  will,  this  circum- 
stance should  strongly  negative  the  exercise  of  undue  influence  by 
himJ 

Even  the  will  of  a  very  feeble  and  aged  testator  may  be  upheld 
against  circimistances  justly  creating  suspicion,  if  the  jury  or 
triers  upon  the  whole  evidence  believe  him  to  have  been  capable, 
and  are  not  satisfied  that  fraud  or  undue  influence  induced  the 
execution  of  the  instrument.*  And  a  long  lapse  of  time  intervening 
between  the  date  of  execution  and  the  testator's  death,  during 
which  the  testator  was  relieved  of  the  constraint  and  might  actu- 
ally have  revoked  the  will  had  he  chosen,  must  strengthen  the  case 
in  favor  of  its  establishment.^ 


6.  Supra,   §  227. 

7.  Harp  v.  Parr,  168  111.  459,  48  N. 
E.  113;  Douglas's  Estate,  162  Penn. 
St.   567,   29  A.   715. 

8.  See  Wilson  v.  Mitchell,  101 
Penn.  St.  495. 

9.  See  Wilson  v.  Moran,  3  Bradf. 
172;  Shailer  v.  Bumstead,  99  Mass. 
125;  Lamb  v.  Girtman,  26  Geo.  625; 
O'Neall  V.  Farr,  1  Rich.  80;  31  Ala. 
59,  68  Am.  Dec.  150;  82  P.  57,  147 
Cal.  495;  §§  232,  2516,  229  111.  557, 
82  N.  E.  365. 

Neither  general  bad  treatment  nor 
general  kindness  will  of  itself  estab- 
lisli  undue  influence.  Tawney  v. 
Ix)ng,  76  Penn.  St.  106.  Nor  will 
motive  and  opportunity  alone.  7  Oreg. 
42,  123  P.  915;  Dale's  Appeal,  57 
Conn.  127,  17  A.  757;  25  Neb.  535,41 
N.  W.  354;  115  N.  W.  236,  137  Iowa 
r.13;  68  A.  756,  108  N.  Y.  S.  877; 
Sperl'a    E.state,    103    N.    W.    502.    94 


Minn.  421;  O'Brien's  Appeal,  60  A. 
880,  100  Me.  156,  136  Mo.  414,  37  S. 
W.  1127;  McConnell  v.  Woodworth, 
127  N.  W.  808,  162  Mich.  683;  Kil- 
born's  Estate,  120  P.  762,  158  Cal. 
593.  Nor  merely  suspicious  circum- 
stances. 26  N.  J.  Eq.  523.  And  see 
3  Redf.  (N.  Y.)  52,  181,  384;  Thomp- 
son V.  Davitte,  59  Ga.  472;  Layman  v. 
Conrey,  60  Md.  286;  Andrews,  Re,  33 
N.  J.  Eq.  514;  Keegan's  Estate,  72  P. 
828,  139  Cal.  123;  Gilion's  Will,  57  N. 
E.  1110,  163  N.  Y.  595;  137  N.  Y.  S. 
635;  Freeman  v.  Freeman,  76  S.  E. 
657,  71  W.  Va.  303;  Phillips  v.  Pl.il- 
lips,  148  S.  W.  51,  149  Ky.  208;  128 
P.  932.  One  may  reasonably  prefer 
the  relative  who  has  taken  care  of 
him  in  his  last  years  above  those 
who  have  not.  McCoy  v.  McCoy,  4 
Redf.  (N.  Y.)  54;  Kise  v.  Heath,  33 
N.  J.  Eq.  239.  Or  be  persuaded  to 
reward   services  of   friend  or  relative 


28S 


CHAP.  X.]     EEROR^  FRAUD,  AND  UNDUE  INFLUENCE.       §  2 3 7a 

§  240.  The  Same  Subject:    Evidence  in  Point  freely  admitted. 

But  cireuinstanecs,  slight  of  themselves,  maj,  in  connection  with 
other  facts,  prove  strong  enough  to  turn  the  scale  against  the  al- 
leged will.  Where  the  issues  raised  are  fraud  and  undue  influ- 
ence, any  evidence,  however  slight,  tending  to  prove  those  issue®, 
is  freely  admitted  and  circumsitantial  evidence  may  suffice  as  a 
whole  to  disprove  the  will.^  Suspicious  circumstances  of  interven- 
tion having  been  shown  in  the  preparation  and  execution  of  the 
will,  the  burden  shifts  for  sustaining  it.^  Suspicion  may  at  once 
rest  upon  the  will  in  controversy,  from  the  facts  brought  out  as  to 
the  testator's  soundness  of  mind ;  and  where  some  feeble  and  de- 
crepit or  dying  person,  whose  reason  totters,  appears  to  have  been 
brought  under  a  strong  or  exclusive  influence  to  make  an  unfair 
will  such  as  he  was  not  likely  to  have  made  at  his  own  instance, 
combined  circumstances  adverse  to  probate,  like  these,  become  of 
so  great  consequence,  thiat  the  burden  shifts  easily  upon  those  who 
set  up  the  instrument  and  have,  after  all,  the  general  onus  of  sus- 
taining it.^  On  the  other  hand,  where  the  will  is  made  by  a  tes- 
tator of  good  capacity,  apparently,  and  acquainted  with  the  con- 
tents of  the  instrument,  various  adverse  circumstances  combined 
may  not  overthrow  its  establishment  in  probate.* 

by  a  legacy.    13  Phil.  302;   Lancaster  1.  Beaubien    v.    Cicotte,    12    Mich. 

V.  Alden,  58  A.  638,  26  R.  I.  170;  138  469;  Clark  v.  Stansbury.  49  Md.  346. 

Iowa  326,  111  N.  W.  821.     As  to  de-  See    Thornton    v.    Thornton,    39    Vt. 

sire  to  gratify  a   friend's  wishes  see  122;    Aldrich    v.   Aldrich,    102   N.   E. 

Wallen    v.    Wallen,    107    Va.    131,    57  487,   215  Mass.   164;    133   P.  307,   165 

S.    E.    596;    Seibert    v.    Hatcher,    205  Cal.  607;    139  N.  Y.  S.  485. 

Mo.   83,  102   S.  W.  962.     But  unrea-  2.  Tyrel  v.  Painton   (1894),  P.  151. 

sonable    changes    of    disposition,    es-  3.  See  Marx  v.  McGlynn,  88  N.  Y. 

pecially    in    superseding   the    natural  357;   Swenarton  v.  Hancoclv,  22  Hun 

objects   of  bounty   in   favor  of  others  (N.     Y.)     38;     Welsh,    Re,     1    Redf. 

who  give   casual  attention,  where  no  (N.   Y.)    238;    Barney's  Will,   70  Vt. 

relative  is  at  hand,  raise  a  suspicion.  352,    40    A.    1027;    Harvery    v.    Sul- 

Van    Kleeck    v.    Phipps,    4    Redf.    99.  lens,    46    Mo.    147,    2    Am.    Rep.    491; 

And   if   mental   incapacity   be  shown,  Ray  v.  Ray,  98  N.  C.  566,  4  S.  E.  526. 

it  is  immaterial  whether  undue  influ-  4.  See  e.  g.  Bennett  v.  Bennett,  50 

ence   was    exercised   or   not;    for   the  N.  J.  Eq.  439,  14  A.  222;   Loenneck- 

will  is  sufficiently  vitiated.     86  N.  W.  er's  Will,  88  N.  W.  215,  112  Wis.  461. 
1030,  127  Mich.  607. 

19  289 


§    241  LAW  OF  WILLS.  [pAET    II. 

Indeed,  there  appeiars  at  times  a  conflict  in  the  cases,  concerning 
this  burden  of  proof,  so  that  evidence  which  in  one  instance  may 
be  thought  plainly  inadequate  for  shifting  the  burden  upon  the^ 
propounder  of  the  will,  puts  him  in  anotheir  to  repelling  the  un- 
favorable imputation  which  mere  circumstances  afford.  This  dis- 
crepancy is  besft  met,  first  by  conceding  freely  that  all  maxims  for 
balancing  the  proof  of  fraud,  force,  or  undue  influence,  must  be 
sensitive  and  variable;  and  next,  by  pointing  out  that  the  burden 
of  impeaching  a  will  on  such  grounds  rests  far  more  positively 
upon  a  contestant  where  the  fraud,  force,  or  undue  influence  in 
question  is  made  a  distinct  issue,  there  being  no  doubt  that  the  tes- 
tator was  rational,  intelligent,  and  capable,  than  in  those  cases 
far  more  common,  where  issues  of  insanity  or  incapacity  are 
closely  blended  with  these  darker  ones,  and  the  proof  tends  to 
setting  aside  the  will  on  either  grounid.  For  here  the  line  is  not 
easily  drawn  nor  the  burden  easily  fastened.^ 

§  241.  Proof  of  Fraud,  Forgery,  etc. 

Fraud  will  vitiate  a  will.  And  such  fraud,  it  is  held,  need  not 
be  proved  by  direct  and  positive  testimony;  but  any  facts,  how- 
ever slight,  bearing  at  all  upon  the  point,  and  not  wholly  irrele- 
vant, may  be  admitted,  provided  that  they  are  strong  enough,  when 
combined,  to  satisfy  the  jury  of  the  existence  and  operation  of  the 
fraud.^ 

5.  Hoar,  J.,  in  Baldwin  v.  Parker,  think  the  weight  of  authority  and  the 

99  Mass.  79,  96  Am.  Dec.  697,  makes  best  reason  are  in  favor  of  imposing 

some     sensible     remarks     upon     this  upon  the  party  who  alleges  the  undue 

point,    and    cautiously    concludes    as  inlluence   the   burden   of   proving   it." 

follows:     "But    where    the    issue    of  It  is  here  recalled  that  the  oath  of 

undue    infliK>nce    is    a    separate    and  a    subscribing    witness    or    witnesses 

distinct    issue,    involving    proof    that  makes  prima  facie  proof  of  the  valid- 

the  testator,   though   of   sound   mind,  ity  of  the  will   offered.     Hoffman    v. 

and    intending    that    the    instrument  Hoffman,    72    N.    E.    492,    192    Mass. 

which  he  executes  with   all  the  legal  416;    Waters  v.   Waters,  78  N.  E.   1, 

formalities    shall    take    effect    as    his  222    111.    26,    113   Am.    St.    Rep.   359; 

will,  was  induced  to  execute  it  by  the  §§    172-179,   184a  supra. 

controlling     power     of     another,     we  6.  Davis    v.    Calvert,    5    Gill    &    J. 

290 


CHAP.  X.]    EEROK,  FRAUD,  AND  UNDUE  INFLUENCE.        §  242 

Parol  evidence  is  admissible  either  to  prove  or  to  counteract 
proof  of  a  fraud,  notwithstanding  the  will  itself  must  be  in  writ- 
ing; for  the  purpoB©  in  such  a  case  is  not  to  vary  or  control  what 
is  written,  but  to  impeach  the  validity  of  the  instrument  itself. 
Hence  oral  proof  may  establish  that  one  will  was  surreptitiously 
obtruded  for  another,  and  tli-at  the  testator  executed  it  ignorantly ;  ^ 
or  it  may  rebut  a  charge  of  this  nature.^  But  a  testator's  own  and 
unsupported  declaration  to  prove  that  a  will  apparently  regular 
was  forged,  or  that  he  was  fraudulently  induced  to  execute  it  under 
the  belief  that  it  was  some  other  paper,  are  hearsay  and  inadmissi- 
ble.^ 

§  242.  Character  of  the  Evidence  to  establish  Fraud  or  Undue 
Influence. 
Issues  relating  to  fraud,  force,  or  undue  influence,  and  espec- 
ially the  last,  are  generally  determined  upon  circumstantial  evi- 
dence, and  inferences  drawn  from  a  full  presentation  of  facts 
which  are  inconclusive  when  taken  separately.  Hence  the  wide 
range  of  inquiry  permitted,  in  cases  of  this  description,  so  as  to 
set  before  the  jury  or  trier  of  the  issue  whatever  bears  upon  the 
preparation  of  the  will.  While  the  point  of  inquiry  concerns  the 
testator's  condition,  and  the  external  influences  brought  to  bear 
upon  him  at  the  time  the  alleged  will  was  made,  the  character  of 
those  influences  may  invite  much  study  of  their  motives,  their 
origin,  and  growth,  and  a  comparison  of  counteracting  forces  in 
order  justly  to  estimate  their  probable  effect;  and  as  for  a  tes- 
tators .condition,  his  entire  moral  and  intellectual  development,  is 
more  or  less  involved  in  the  issue,  including  his  power  of  resolu- 
tion to  resist  or  not  the  pressure  which  is  claimed  to  have  been 
brought  to  bear  upon  him.^ 

269,  25  Am.  Dec.  282;  Tucker  v.  Cal-  tion    whether    a    certain    instrument 

vert,  6  Call.  90;   Budlong's  Will,  126  offered   for  probate  is  forged  or  gen- 

N.  Y.  423,  27  N".  E.  945.  uine,   evidence  of  contemporary   mat- 

7.  Doe  V.  Allen,  8  T.  R.  147.  ters,   tending   to  show    a   motive   for 

8.  Doe  V.  Hardy,  1  Moo.  &  R.  525.  forgery,  is  inadmissible.     Kennedy  v. 

9.  Boylan     v.     Meeker,     4     Dutch.  Upshaw,  64  Tex.  411. 

274.     See  §   243,  post.     On  the  ques-  1.  Colt,  J.,  in  Shailer  v.  Bumstead, 

291 


§    242  LAW  OF  WILLS.  [pART    11. 

■So,  too,  is  it  admissible  to  prove  that  former  wills  or  former 
testamentary  plans  embodied  a  different  purpose,  as  tending  to 
show  whether  or  not  the  testator  has  understandingly  and  of  his 
own  free  will  changed  his  settled  plans  in  favor  of  the  present  ar- 
rangement; while  (the  juistice  or  injustice  of  that  arrangement,  the 
natural  or  unnatural  character  of  the  will  offered  for  probate,  may 
open  a  wide  inquiry  into  family  circumstances;  for  evidence  tend- 
ing to  show  the  i-elation  of  a  testator  to  the  natural  objects  of  his 
bounty,  the  feelings  he  entertained  towards  them,  and  their  pecu- 
niary condition,  bears  upon  the  issue  of  undue  influence  as  well 
as  of  capacity.^ 

In  establishing  the  charge  of  fraud  or  undue  influence,  it  is 
further  observed  that  "  two  points  must  be  sustained :  fi^rst,  the  fact 
of  the  deception  practised  or  the  influence  exercised  ;  and  next,  tliat 
this  fraud  and  influence  were  effectual  in  producing  the  alleged 
result,  misleading  or  overcoming  the  party  in  this  particular  act. 
The  evidence  under  the  first  branch  embraces  all  those  exterior  acts 
and  declarations  of  others  used  and  contrived  to  defraud  or  control 
the  testator ;  and  under  the  last,  includes  all  thiat  may  tend  to  show 

99    Mass.    121.     And   so,   where   both  2.  Beaubien    v.    Cicotte,    12    Mich. 

mental    incapacity    and    undue    influ-  459;    Staser  v.  Hogan,   120   Ind.   207, 

ence  are  alleged.  Glass's   Estate,   103  21  N.  E.  911;   Melanefy  v.  Morrison, 

N.  VV.  1013,  127  Iowa  646.     And  see  152  Mass.  473,  26  N.  E.  36;   Crocker 

Lucas  V.  Parsons,  27  Ga.  593;   Jack-  v.  Chase,  57  Vt.  413,  68  A.  756.     Evi- 

son  V.  Kniffen,  2  Johns.  31;  Reynolds  dence   showing  through  what   line  of 

V.     Adams,     90    111.     134;     Pierce     v.  relatives,   or    from   what  sources,   the 

Pierce,    38    Mich.    412;    Carpenter    v.  fortune    bequeathed    was    derived,    or 

Hatch,  64  N.  H.  573;   67  N.  H.  520;  favors   received,   may   have  a  bearing 

Foster   v.   Dickerson,   64   Vt.   233,   24  upon  the  natural  or  unnatural  char- 

A.  353;   17  W.  Va.  683,  41  Am.  Rep.  acter   of   the    disposition.      Glover   v. 

682;   Lincbarger  v.  Linebarger,  55  S.  Hayden,    4    Cush.    580;    Patterson    v. 

E.  709,  143  N.  C.  229.     See  Aumuck  Patterson,   6   S.   &   R.   55;    Oxford   v. 

V.   Jackson,   78   A.    749,   78   N.   J.   Eq.  Oxford,    71    S.    E.    883,   136   Ga.    580; 

189.  Smith  v.  Keller,  98  N.  E.  214,  205  N. 

The    inference    of    fraud    from    tiie  Y.  39;   Dudderar  v.  Dudderar,  82  A. 

facts  is  for  the  jury,  and  not  a  con-  453,  116  Md.  605    (draft  of  a  former 

elusion   of    law   to   be   drawn   by   the  unexecuted  will), 
court,     llurah  v.  Knox,  87  N.  C.  483. 

292 


CHAP.  X.]    ERROE,  FRAUD,  AND  UNDUE  INFLUENCE. 


§  242 


tlia-t  the  testator  was  of  that  peculiar  mental  structure,  was  pos- 
sessed of  those  intrinsic  or  accidental  qualities,  was  subject  to  such 
passion  or  prejudice,  of  such  perverse  or  feeble  wil],  or  so  mentally 
infirm  in  any  respect,  as  to  render  it  probable  that  the  efforts  used 
were  successful  in  producing  in  the  will  offered  the  combined  re- 
sult  The  purpose  of  the  evidence  in  this  direction  is  to  establish 
that  liability  of  the  testator  to  be  easily  affected  by  fraud  or  undue 
influence  which  oonstitutes  the  necessary  counterpart  and  comple- 
ment of  the  other  facts  io  be  proved.  Without  such  proof,  the  is- 
sue can  seldom,  if  ever,  be  maintained."  ^  Experience  shows  that 
direct  proof  of  undue  influence  or  fraud  is  rarely  attainable ;  but 
inference  from  circumstances  must  determine  it;  at  the  same  time, 
facts  and  circumstances  adduced  ought  to  lead,  justly  and  reason- 
ably, to  the  unfavorable  conclusion,  in  order  to  defeat  the  will.* 
Undue  influence  in  contests  of  this  kind  is  sufficiently  established 
by  a  preponderance  of  the  evidence  adduced;^  and  the  jury  or 
trier  of  the  case  may  draw  inferences  freely  from  facts  in  conflict- 
ing testimony.^ 


3.  Colt,  J.,  in  Shailer  v.  Bumstead, 
99  Mass.  121.  See  also  Dietrick  v. 
Dietrick,  5  S.  &  R.  207;  Potter  v. 
Baldwin,  133  Mass.  427;  17  W.  Va. 
683;  35  N.  J.  Eq.  120,  446,  63  A.  1048, 
103  Md.  416;  Piper  v.  Andricks,  71 
N.  E.  18,  209  111.  564;  Beemer  v. 
Beemer,  96  N.  E.  1058,  252  111.  452; 
Smith  V.  Smith,  56  So.  949,  (Ala.) 
(1911). 

4.  See  Saunders's  Appeal,  54  Conn. 
108.  "  Undue  influence  is  generally 
proved  by  a  number  of  facts,  each  one 
of  which  standing  alone  may  be  of 
little  weight,  but  taken  collectively 
may  satisfy  a  rational  mind  of  its 
existence."  Stone,  J.,  in  Moore  v. 
McDonald,  68  Md.  321.  339,  12  A.  117. 
And  it  is  further  observed  in  this 
sensible  opinion,  that  if  the  facts 
proved  are  such  that  a  rational  mind 
might   in    reason   and   fairness    draw 


from  them  the  conclusion  sought,  it 
is  the  duty  of  the  court  (where  ap- 
peal is  made  from  the  judge  of  prob- 
ate who  tries  in  the  first  instance) 
to  submit  the  case  to  the  jury; 
their  province  being  to  decide  the  ex- 
istence of  undue  influence  at  the  time 
of  the  execution  of  a  will,  like  any 
other  question  of  fact.  lb.  Undue 
influence  which  invalidates  is  a 
species  of  constructive  fraud  not  to 
be  defined  by  any  fixed  words. 
Smith  V.  Henline,  174  111.  184,  51  N. 
E.  227;    69  Ala.  555. 

5.  Bush  V.  Delano,  113  Mich.  321, 
71  N.  W.  628. 

6.  Caven  v.  Agnew,  186  Penn.  St. 
314,  40  A.  480;  Smith  v.  Smith,  67 
Vt.  443,  32  A.  255;  Walls  v.  Walls, 
99  S.  W.  969,  39  Ky.  Law  948;  Sibley 
V.  Morse,  109  N.  W.  858,  146  Mich. 
463;    Bradford  v.  Blossom,  88  S.  W. 


293 


§    243  LAW  OF  WILLS.  [pAltT    II. 

§  243.  The  Same  Subject :   Declarations  of  the  Alleged  Testator. 

Many  decisions,  not  altogether  liarmoniou'S,  relate  to  the  testa- 
tor's declarations  in  issues  of  the  present  kind.  The  gemi^ral  rule 
is,  that  a  testator's  previous  declarations  are  admissible  within  a 
liberal  range  for  the  purpose  of  throwing  light  upon  his  mental 
condition,  his  exposure  to  oonsitraint  or  fraud,  and  the  surrounding 
circumstances  of  the  testamentary  act.  As,  for  instance,  his  state- 
ments that  he  disliked  or  feared  the  person  whose  coercion  is  im- 
puted in  the  case,  that  he  was  not  master  in  his  own  house,  that  he 
had  to  submit  in  his  course  of  life,  or  else  there  would  be  trouble, — 
and  the  like.''  So,  too,  in  connection  with  either  proof  of  fraud 
or  undue  influence,  are  one's  declarations  made  at  different  times, 
and  at  distant  inteirvals,  down  to  the  making  of  the  will,  which  dis- 
close a  loaig-cherished  purpose  of  disposing  of  his  estate  quite  dif- 
ferently from  what  the  will  provides  as  p'ropounded ;  ^  or  sitate- 
ments  showing  dislike  or  affection  for  the  natural  objects  of  his 
bounty  or  for  those  favored  in  the  alleged  will.^  A  testator's  pre- 
vious declarations  are  likewise  admissible  in  support  of  the  will 
which  is  impeached,  as  showing  a  long-cherished  purpose  on  his 
part  to  make  a  testamentary  disposition  like  tbat  in  controversy, 
or  in  other  respects  rebutting  the  idea  of  fraud  or  undue  influence.^ 
But  declarations  of  vague  import  or  unsupported  by  other  perti- 
nent proof  of  facts  may  well  be  ruled  out.^ 

721,  190  Mo.  110;  Brackey  V.  Brackey,  112;   Waterman  v.  Whitney,  1  Kern. 

130  N.   W.   370,   151   Iowa   99;    Ever-  157;  Robinson  v.  Adams,  62  Me.  369, 

ett's  Will,  68  S.  E.  924,  153  N.  C.  83.  16  Am.  Rep.  473;  Beaubien  v.  Cicotte, 

7.  Beaubien  v.  Cicotte,  12  Mich.  12  Mich.  459;  Whitman  v.  Morey,  63 
459.  Cf.  Bunyard  v.  McElroy,  21  N.  H.  448;  64  N.  H.  573,  15  A.  219. 
Ala.  311.  1.  Roberts  v.  Trawick,  17  Ala.  55, 

8.  Wooton  V.  Redd,  12  Gratt.  196;  52  Am.  Dec.  164;  O'Neil  v.  Murray,  4 
Denison's  Appeal,  29  Conn.  399;  Bradf.  (N.  Y.)  311;  Gardner  v. 
Neel  V.  Potter,  40  Penn.  St.  483;  Dye  Frieze,  16  R.  I.  640,  19  A.  113;  Harp 
V.  Youn?,  55  Iowa,  433,  7  N.  W.  678;  v.  Parr,  168  111.  459,  48  N.  E.  113; 
•Moore  v.  McDonald,  68  Md.  321,  12  Kaufman  v.  Caughman.  49  S.  C.  159, 
A.  117;  106  Iowa,  203,  76  N.  W.  717,  61  Am.  St.  Rep.  808,  27  S.  E.  16;  180 
68  Am.  St.  Rep.  293.  ill.  300,  54  N.  E.  321. 

9.  Sliallcross    v.    Palmer,    16   Q.    B.  2.  184  Penn.  St.  41,  39  A.  46. 
751;    Shailer   v,   Bumstcad,  90  Mass. 

294 


CHAP.  X.J    EKKOK,  FRAUD,  AND  UNDUE  INFLUENCE.        §  243 

A  testatoir's  declaraitioiis  and  acts  after  tlie  execution  of  a  will 
may  be  alleged  to  show  liis  knowledge  of  the  testamentary  character 
of  the  dispo'sition  and  to  dispel  any  possible  claim  of  mistake  or 
imposition.' 

By  weighit  of  authority  a  testator's  subsequent  declara/tions  are 
admissible  when  they  denote  the  mental  fact  at  the  date  of  execu- 
tion which  is  to  be  p'roved,  or  are  close  enough  in  point  of  time  to 
make  part  of  tlie  res  gestae;  or  where  they  repel  the  favorable  in- 
ference naturally  arising  from  the  fact  that  an  ambulatory  instru- 
ment remains  unrevoked  after  the  alleged  fraud  or  coercion  has 
ceased  to  operate;  o>r  where  they  tend  to  show  th.at  the  state  of 
mind,  or  the  feelings,  opinions,  peculiarities  of  character,  existing 
when  the  alleged  will  was  made,  continued  to  operate,  so  as  all  the 
more  to  discredit  the  instrument  set  up  as  appa^rently  tlie  formal 
and  deliberate  expression  of  his  will  at  the  period  in  question.* 
Declarations  made  long  after  the  will  are  not,  it  is  true,  permitted 
by  the  best  authorities  to  show  by  way  of  narrative  or  independ- 
ently as  facts,  that  fraud  O'r  undue  influence  was^  p'ractised  at  the 
former  and  essential  date  of  execution ;  ^  for  this  would  be  to  con- 

3.  Nelson's  Will,  141  N.  Y.  152,  36  v.  Hayden,  95  Mich.  352,  35  Am.  St. 
N.  E.  3;  98  Ga.  552,  25  S.  E.  590.  Rep.  566;  Weber  v.  Strobel,  139  S. 
See   Shaul's  Will,   143  N.   Y.   S.   433.  W.    188,    336    Mo.    649;     Stewart    v. 

4.  Comstoclc  V.  Hadlyme,  8  Conn.  Stewart,  71  S.  E.  308,  155  N.  C.  341; 
254,  20  Am.  Dec.  100;  Waterman  v.  Ridgely  v.  Brand,  138  S.  W.  269,  144 
Whitney,    1    Kern.    157;     Howell    v.  Ky.  433. 

Barden,  3  Dev.  L.  442;  Richardson  v.  5.  Smith    v.    Fenner,    1    Gall.    170; 

Richardson,    35    Vt.    238;    Griffith    v.  Runkle  v.  Gates,  11  Ind.  95;  Jackson 

DinenderflFer,   50  Md.  466;    Potter  v.  v.   KnifTen,   2   Johns.   31,   3   Am.   Dec. 

Baldwin,   133   Mass.   427;    Stephenson  390;    Thompson    v.    Updegraff,    3    W. 

V.  Stephenson,  62  Iowa,  163,  17  N.  W.  Va.  629;  Vance  v.  Vance,  74  Ind.  370; 

456;   Robinson  v.  Hutchinson,  26  Vt.  La  Bau  v.  Vanderbilt,   3   Redf.   384; 

38,  60  Am.  Dec.  698;  Roberts  v.  Bid-  Vanvalkenberg   v.   Vanvalkenberg,   90 

well,  98  N.  W.  1000,  136  Mich.  191;  Ind.    433;    36   N.   J.   Eq.   259,    603;    4 

Robinson  v.  Robinson,  53  A.  253.  203  Dutch.  274;   Merriman's   Appeal,   108 

Penn.    400;    Reynolds    v.    Adams,    90  Mich.  454,  66  N.  W.  372;  Underwood 

11!.    134,    32   Am.    Rep.    15;    66   Iowa  v.   Tliurman,   36   S.   E.   788,   111   Ga. 

754,  21  N.  W.  570;  Bryant  v.  Pierce,  325. 
95   Wis.  331,  70  N.   W.  297;   Haines 

295 


§    243  LAW  OF  WILLS.  [PAKT    II. 

tradict  by  hearsay  evidence  after  one's  death,  what  the  solemn  in- 
strument in  writing,  unrevoked  and  witnessed,  declares  was  his  in- 
tention while  living ;  and  it  is  scarcely  possible  that  a  foundation 
for  impeaching  ithe  will,  should  it  deserve  at  all  to  fail,  cannot  be 
better  laid  than  upon  such  weak  and  treacherous  testimony.®  Such 
declarations  are  not,  however,  to  be  rejected,  if  admissible  on  other 
grounds  like  those  we  have  indicated,  and  where  a  foundation  has 
already  been  laid  for  bringing  them  in  to  corroborate  better  proof 
bearing  upon  the  main  issue;  and  it  remains  for  (the  presiding 
judge  carefully  to  point  out  how  far  these  deiclarations  must  be 
rejected  or  received  as  evidence  of  the  jury.'^  Declarations  made 
at  any  distance  of  time  after  the  will  was  executed  are  all  the  less 
pertinent  to  show  fraud  and  undue  influence,  where  the  will  itself 
has  remained  in  the  testator's  possession  and  control  uncancelled ;  * 
and  mere  declarations,  whether  previous  or  subsequent  to  the  will, 
amount  of  themselves  to  very  little  in  the  face  of  a  prima  facie 
showing  that  the  testtator  was  a  thoroughly  competent  person,  en- 
joying normal  health,  and  under  no  apparent  coercion  or  stress  of 
error  when  he  executed  the  instrument,'*  especially  if  he  looked  per- 
sonally after  the  details  of  drawing  and  executing  his  own  v^dll.^ 

6.  Obtained,  as  such  hearsay  dec-  mind  and  feelings,  are  not  competent 
larations  may  be,  by  deception  or  evidence  of  the  facts  stated  therein 
undue  influence,  and  always  liable  to  to  prove  fraud  or  undue  influence, 
the  infirmities  of  human  recollection,  Marx  v.  McGlynn,  88  N.  Y.  357.  De- 
"  their  admission  would  go  far  to  clarations  of  the  testator's  feelings 
destroy  tlie  security  which  it  is  es-  when  admitted  may  be  shown  to  have 
sential  to  preserve."  Colt,  J.,  in  no  foundation  in  fact.  Canada's  Ap- 
Shailer  v.  Bumstead,  99  Mass.  122.  peal,  47  Conn.  450.     And  evidence  of 

7.  Shailer  v.  Bumstead,  99  Mass.  declarations  expressing  only  dissatis- 
122.  and  authorities  cited.  And  see  faction  with  one's  will  and  not  tend- 
Johnson  v.  Lyford,  L.  R.  1  P.  &  D.  ing  to  show  undue  influence  or  fraud 
546.  is    irrelevant.      Ryman    v.    Cruwfoid, 

8.  Smith  V.  Fenner,  1  r4all.  170;  86  Ind.  262;  28  Minn.  9;  Robinson  v. 
Runkle  v.  Gates,  11  Ind.  95.  Stuart,  73  Tex.  267,  11  S.  W.  275. 

9.  See  Hoshauer  v.  Hoshauer,  26  1.  Pemberton,  Re,  40  N.  J.  Eq.  520, 
Penn.  St.  404;  Booth  v.  Kitchen,  3  Declarations  apparently  free  and  vol- 
Redf.  (N.  Y.)  52.  Diaries  or  letters  untary,  to  the  efl'ect  of  sustaining  the 
written  by  a  testator,  thou^li  ad-  will  as  what  he  had  desired,  are  sonie- 
mi.ssible  to  show  tlie  condition  of  his  times  adniittod.     98  Gu.  552. 

29G 


CHAP,  X.]    EEROR,  FRAUD,  AND  UNDUE  INFLUENCE.        §  244 

In  short,  a  testator's  declarations,  whether  made  before  or  after 
the  execution  of  the  will,  aside  from  the  time  of  execution  itself, 
are  admisfsible  chiefly  to  show  his  mental  condition  or  the  real 
state  of  his  affections ;  and  they  are  received,  ra^ther  as  his  own 
external  manifestations  than  as  evidence  of  the  truth  or  untruth  of 
facts  relative  to  tlie  exertion  of  undue  influence  upon  him ;  they 
may  corroborate,  but  the  issue  calls  for  its  own  proof  from  the 
living.^  And  the  more  remote  such  declarations  from  the  time 
when  the  "will  was  executed,  the  less  becomes  their  value.^  Decla- 
rations impertinent  to  the  issue,  moreover^  are  not  admissible  at 
all.'*  There  should  be,  on  the  whole,  independent  testimony  indi- 
cating undue  influence  before  the  decedent's  declarations  are  con- 
sidered ;  and  then  they  are  chiefly  pertinent  to  show  a  condition  of 
mind  susceptible  to  the  sinister  influence,  and  a  testamentary  act 
corresponding.^ 

§  244.  Declarations,  Admissions,  etc.,  of  Legatees  or  Parties  in 
Interest. 

As  in  contests  which  involve  a  testator's  mental  capacity,^  so 
is  it,  according  to  the  best  authorities,  with  issues  of  fraud  and  un- 
due influence,  that  the  declaration  or  conduct  of  a  legatee  or  party 

2.  Bush  V.  Bush,  87  Mo.  480;  Mid-  Estate,  105  N.  W.  110,  128  Iowa  621; 

dlewitch   v.    Williams,    45    N.    J.    Eq.  Smith   v.   Keller,   98   N.   E.   214,    205 

726,   17  A.   826;    Herster   v.   Herster,  N.  Y.  39;   Norton  v.  Clark,  97  N.  E. 

122  Penn.  St.  239,  16  A.  342,  9  Am.  1079,    253    111.    557;    Ditton    v.    Hort, 

St.  Rep.  39;   153  Mass.  487,  26  N.  E.  93  N.  E.  961,  175  Ind.   181    (written 

1114;   Eastis  V.  Montgomery,  93  Ala.  declarations). 

293,  9  So.  311;   Crocker  v.  Chase,  57  3.  Smith   v.   Keller,   98   N.   E.   214, 

Vt.  413,  68  A.   756;    73  P.  1081,   140  205  N.  Y.  39    (six  to  ten  years  after 

Cal.   390;    97  N.  W.   1108,   122   Iowa,  execution  too  remote). 

246;    Hobson   v.   Moorman,   90   S.   W.  4.  134  U.  S.  47,  32  L.  Ed.  805,  33 

152,  115  Tenn.  73,  3  L.  R.  A.   (N.  S.)  S.   W.  819.     As  to  conservations,  see 

837;  Linebarger  v.  Linebarger.  55  S.  Potter's  Will,   55  N.   E.   387,   161  N. 

E.   709,   143   N.   C.   229;    Miller's  Es-  Y.  84. 

tate,  88  P.  338,  31  Utah  415   (conduct  5.  Kirkpatrick      v.      Jenkins,      96 

of   party   as  res  gestae)  ;    Cheney  v.  Tenn.  85. 

C^oldy,    80   N.    E.    289,    225    111.    394,  6.  Supra,  §   195. 
116    Am.    St.    Rep.    145;    Townsend's 

297 


§    24:5  LAW  OF  WILLS.  [pART    II. 

in  interest,  is  not  to  be  shown  in  evidence  by  way  of  an  admission 
against  interest,  so  long  as  other  parties  who  would  be  affected 
thereby  are  not  jointly  interested  nor  in  privity  with  them.''  The 
declarations  against  their  interest  of  legatees  who  are  not  parties 
to  the  proceedings  in  court  are  in  general  inadmissible.^  But  the 
admissions  and  decla^rations  of  a  sole  legatee  may  be  thus  proved 
against  his  own  interest ; "  and  courts  have  been  disposed  to  admit 
such  evidence  for  the  purpose  of  setting  aside,  if  possible,  the  legacy 
of  any  one  who  has  thus  confessed  himself  a  party  to  the  fraud- 
ulen,  procurement  of  a  will.^ 

§  245.  Suspicious  Circumstance  that  the  Will  is  drawn  by  the 
Party  deriving  a  Benefit. 
In  issues  of  fraud  or  undue  influence,  the  circumstance  that  a 
party  who  derives  under  the  will  a  disproportionate  benefit  or  a 
benefit  to  which  he  had  no  natural  claim  is  the  party  who  drew 
it  lends  disfavor  to  the  instrument,  and  may  turn  the  scale  against 
its  admission  to  probate.  The  universal  maxim  of  law  treats  one 
who  writes  himself  the  heir  as  lending  suspicion  tO'  the  writing. 
The  civil  law  made  little  of  setting  aside  any  v^ll  which  was  writ- 
ten or  prepared  by  the  party  deriving  the  essential  l>enefit  under 
it.^  Our  common  jurisdiction  does  not  adopt  this  rule  in  its  full 
stringency;  nevertheless  a  sense  of  propriety  and  delicacy  clearly 
suggests  that  one  who  is  to  be  directly  benefited  by  a  will  to  tha 
considerable  detriment  of  others  in  legal  interest,  should  refrain 
from  conducting  the  execution  of  it ;  and  it  is  well  settled  that  any 

7.  Shailer  v.  Bumstead,  99  Mass.  552;  Blakely  v.  Blakely,  33  Ala.  611; 
129,  and  cases  cited.  Shailer  v.  Bumstead,  99  Mass.  129,  by 

8.  99  Mass.  129;  Carpenter  v.  Colt,  J.;  Dotts  v.  Fetzer,  9  Penn.  St. 
Hatcli,  64  N.  H.  573,  15  A.  219.  88;    Jackson  v.  Jackson,   32  Ga.  325. 

9.  Ware  v.  Ware,  8  Greenl.  42;  The  declarations  of  a  legatee  tend- 
Nus.sear  v.  Arnold,  13  S.  &  R.  323;  ing  to  show  that  she  exercised  undue 
Fairchild  v.  Bascomb,  35  Vt.  398.  influence  are  not  admissible  where 
And  see  Bush  v.  Bush,  80  Mo.  480;  her  liusband  is  executor  and  a 
Saunders's  Appeal,  54  Conn.  154,  6  party  to  the  suit.  Crocker  v.  Chase, 
A.  193;   54  N.  Y.  S.  77.  57   Vt.   413,   68   A.   756. 

1.  See    Morris    v.    Stokes,    21    Geo. 

298 


CHAP.  X.]     ERROR,  FRAUD,  AND  UNDUE  INFLUENCE.        §  245 

will,  prej^arcd  or  procured  by  one  thus  interested  in  its  provisions, 
imposes  an  additional  burden,  if  assailed,  upon  those  who  seek  to 
establish  it;  for  the  court,  or  the  trier  of  the  ease,  regards  that 
circumstance  witJi  suspicion  and  jealousy,  and  desires  'to  be  satis- 
fied that  the  paper  which  is  propounded  expresses  the  true  will  of 
the  deceased  and  not  that  of  the  interested  party.^  Suspicion  gains 
additional  force  if  it  ap'pears  that  the  testator  was  feeble-minded 
and  liable  to  coercion ;  or  if  such  beneficiary  actively  directed  the 
execution  of  the  will.'*  But  on  due  explanation  given,  as  all  the 
evidence  shows,  and  the  suspicion  removed,  the  will  stands,  no 
matter  who  prepared  it.^ 

In  sJiort,  the  fact  that  the  will  was  drawn  by  a  favored  legatee, 
while  it  calls  for  suspicious  scrutiny  of  the  circumstances,  does 
not  of  itself  invalidate  the  will,  but  the  triers  of  the  case  weigh 
all  the  proof.  The  mere  presence  of  a  beneficiaiy  under  a  will 
at  its  execution  is  not  improper,  suspicious  or  objectionable,  where 
no  proof  appears  thait  he  actively  instigated  the  business.^  And 
our  later  cases  appear  to  rule  that  wherever  the  testator's  drafts- 
man or  manager  of  the  execution  may  be  thought  worthy  of  some 
generous  token,  undue  influence  and  fraud  are  not  to  be  presumed 

2.  1  Redf,  Wills,  158,  159;  1  Wms.  4.  Smith  v.  Henline,  174  111.  184. 
Exrs.   351.  51  N.  E.  227. 

3.  Croft  V.  Day,  1  Curt.  784 ;  Barry  5.  Rusling  v.  Rusling,  36  N.  J.  Eq. 
V.  Butlin,  1  Curt.  637;  s.  c,  2  Moore  603;  ib.  269;  4  Redf.  (N.  Y.)  441; 
P.  C.  480;  Paske  v.  Ollat.  2  PhiUim.  45  N.  J.  Eq.  173,  16  A.  690.  A  court 
323;  Coffin  v.  Coffin,  23  N  Y.  9,  80  need  not  instruct  a  jury  that  the  fact 
Am.  Dec.  235;  Delaficld  v.  Paris').  25  that  the  draftsman  is  largely  bene- 
N.  Y.  9;  1  Redf.  (N.  Y.)  1;  Duffield  fited  under  the  will  is  always  a  sus- 
V.  Morris,  2  Harring.  375.  76  Am.  picious  circumstance.  64  Md.  138,  21 
Dee.  127;  Hughes  v.  Meredith,  24  Gi.  A.  273.  And  see  Carpenter  v.  Hatch, 
325;  Downey  v.  Murphey,  1  Dev.  &  64  N.  H.  573,  15  A.  219;  67  N.  H. 
Bat.    82;    Gerrish    v.    Nason,    22    Me.  520,  42  A.  47. 

438,  39  Am.  Dec.  589;   Cuthbertson's  6.  Ethridge    v.    Bennett,    9    Houst. 

Appeal,  97  Penn.  St.  163;    Patton  v.  295.     In  Bennett  v.  Bennett,  50  N.  J. 

Allison,    7   Humph.    320;    England   v.  Eq.    439,    26    A.    573,   the   draftsman 

Fawbush,  68  N.  E.  526.  204  111.  384;  was  a  principal  legatee  and  the  will 

Adair   v.   Adair,   30   Ga.   102;    Cheat-  was  not  a  just  one;   and  yet  the  will 

ham  V.  Hatcher,  30  Gratt.  56,  32  Am.  was    sustained    because    evidence    of 

Rep.  659.  improper   influence  was  not  shown. 

29^ 


§    245  LAW  OF  WILLS.  [pART    II. 

from  tlie  fact  thait  the  will  gives  liim  a  legacy  or  executoirship  ac- 
cordingly.'' The  extent  of  his  benefit  as  compared  with  that  of 
natural  objects  of  one's  bounty  is  a  matter  of  some  consequence. 
Nor  is  the  testamentai*y  act  void,  though  the  person  who  makes 
the  will  in  his  ovra.  favor  is  the  agent  and  attorney  of  the  testator ; 
and  yet  suspicion  against  the  will  becomes  all  the  stronger  in  pro- 
portion as  the  testator  was  weak-minded,  igTiorant,  or  feeble,  and 
must  have  confided  in  his  draftsman's  superior  skill  and  experi- 
ence.^ It  is  by  no  means  uncommon  in  our  States  at  this  day, 
though  a  practice  liable  to  abuse,  for  professional  advisers  to  draw 
up  wills  which  confer  vipon  themselves  all  the  influence  and  emolu- 
ment of  executor  and  trustee.  Should  the  adviser  write  himself 
down,  besides,  for  a  legacy  unreasonably  great,  being  no  natural 
claimant  upon  the  testator's  boimty,  the  will  ought  to  be  looked 
upon  with  no  little  suspicion.^  And  the  conduct  of  a  professional 
man  has  sometimes  avoided  the  will  prepared  by  him  on  the  ground 
that  he  allowed  the  testator  to  remain  ignorant  of  legal  conscf- 
quences,  where  the  effect  was  to  influence  the  instrument  in  his 
own  favor  or  so  as  artfully  to  divert  the  disposition  from  that 
intended.^ 

7.  Post  V.  Mason,  91  N.  Y.  539,  43  9.  But  no  presumption  of  fraud  or 
Am.  Rep.  689;  Carter  v.  Dixon,  69  undue  influence  arises  from  tlie  fact 
Ga.  82,  111  N.  Y.  239,  18  N.  E.  874;  that  the  legal  adviser  and  draftsman 
Trubey  v.  Richardson.  79  N.  E.  592,  receives  a  legacy  not  unreasonably 
224  111.  136.  Cf.  Yardlcy  v.  Cuth-  great.  Post  v.  Mason,  91  N.  Y.  539. 
bertson,  108  Penn.  St.  395,  56  Am.  But  Cf.  Cramer  v.  Crumbaugh,  3  Md. 
Rep.  231.  And  see  McEnroe  v.  Mc-  491,  where  the  draftsman  wrote  him- 
Enroe,  51  A.  327,  201  Penn.  477  self  executor,  and  with  his  son,  both 
(drew  will  at  request  and  absent  from  strangers  in  blood,  took  the  chief  part 
execution)  ;  Kindberg's  Will,  100  N,  of  the  estate.  See  also  Carter  v. 
E.  789,  207  N.  Y.  220  (residuary  lega-  Dixon,  69  Ga.  82;  Garrett  v.  Hoflin, 
tee  drew  the  will).  Cf.  Cash  v.  Den-  98  Ala.  615,  13  So.  326,  39  Am.  St. 
nis,  139  N.  W.  920  (physician  and  Rep.  89;  Kilborn's  Estate,  120  P. 
patient).  762,   158   Cal.   593    (merely   made  ex- 

8.  1  Wms.  Exrs.  112;  4  Hagg.  391;  ecutor  and  trustee). 

3   Hagg.   587;    St.  Leger's  Appeal,  34  1.  Walker  v.  Smitli,  29  Bcav.  394; 

Conn.  434,  91  Am.  Dec.  742;  174  Penn.  Hindson  v.  Weatherill,  5  De  G.  M.  & 

St.  373,  34  A.  603;   56  N.  J.  Eq.  766,  G.  301;  Lyon  v.  Dadn,  111  Mich.  340, 

41  A.  422.  09  N.   W.   654. 

300 


CHAP.    X.]  EEROK,  FRAUD,  AyiD  UNDUE  INFLUENCE. 


§  246 


§  246.  Confidential  Relation  in  General  implies  Opportunities 
which  must  not  be  abused. 
In  general,  the  oxistenoe  of  a  confidential  relation,  as  between 
guardian  and  ward,  attorney  and  client,  physician  and  patient,  or 
even  religious  adviser  and  layman,  is  of  a  nature  which  implies 
peculiar  opportunities  outside  the  family  relation,  for  influencing 


In  Barry  v.  Butlin,  1  Curt.  637 
(1838),  Baron  Parke  announces  in 
precise  terms  the  rule  which  required 
the  court's  suspicion  to  be  overcome, 
before  probate  is  granted  of  a  will 
which  is  written  or  prepared  by  the 
party  who  takes  a  benefit  under  it. 
But  he  further  disclaims  the  notion, 
that  at  our  law  there  is  any  partieu- 
lar  measure  of  unfavorable  presump- 
tion, in  such  cases,  which  the  pro- 
pounder  of  the  will  must  overcome,  or 
any  particular  species  of  proof  to  be 
applied  for  that  purpose,  by  way  of 
additional  evidence  that  the  testator 
was  not  imposed  upon.  And  he 
presses  (what  in  sucli  cases  ought 
never  to  be  left  out  of  view)  the  ex- 
tent, the  proportion  of  the  benefit 
which  the  party  thus  laid  under  sus- 
picion has  essentially  derived  under 
such  a  will.  For  instance,  a  man  of 
immense  fortune  might  bestow  a 
certain  sum  by  way  of  legacy  upon 
his  confidential  adviser,  without 
raising  any  serious  suspicion  to  be 
overcome  by  special  proof  that  tlie 
testator  knew  what  he  was  about 
and  acted  freely;  while  a  legacy  of 
the  same  amount  wliich  would  absorb 
the  greater  part  of  a  moderate  estate, 
to  the  sacrifice  of  the  testator's  im- 
mediate relations  and  their  rights, 
would  be  viewed  with  far  greater 
jealousy.  Various  other  considera- 
tions, we  may  add,  occur  in  the  same 


connection;  whether,  for  instance, 
this  fact  stands  by  itself  or  tends, 
with  other  facts,  to  establish  fraud 
or  undue  influence;  whetlifr  the 
draftsman  had  a  natural  claim;  the 
character  and  situation  of  the  par- 
ties; the  harmony  of  the  will  with 
the  testator's  known  intentions;  and 
so  on.  To  conclude  in  Baron  Parke's 
own  words,  this  drawing  or  prepar- 
ing of  the  will  amounts  in  no  case  to 
more  than  "  a  circumstance  of  sus- 
picion, demanding  the  vigilant  care 
and  circumspection  of  the  court 
in  investigating  the  case,  nnl 
calling  upon  it  not  to  grant  probate 
without  full  and  entire  satisfaction 
that  the  instrument  did  express  the 
real  intentions  of  the  deceased."  See 
also  Coffin  v.  Coffin,  23  N.  Y.  9.  80 
Am.  Dec.  235,  where  the  draftsman 
was  also  one  of  the  nearest  relations 
of  the  testator. 

Sinister  conduct  attending  the  exe- 
cution of  the  will,  as  shown  in  keep- 
ing those  away  who  were  adversely 
interested,  taking  exclusive  custody 
of  the  instrument  after  it  was  signed, 
etc.,  bear  unfavorably  against  a 
draftsman.  Hollingsworth's  Will,  58 
Iowa  526,  12  N.  W.  584;  Drake's 
Appeal,  45  Conn.  9.  So  does  proof  of 
the  testator's  mental  weakness  or 
liability  to  imposition.  Cuthbert- 
son's  Appeal,  97  Penn.  St.  163;  Dale 
v.   Dale,   38  N.  J.  Eq.  274.     Or  that 


301 


246 


LAW  OF  WILLS. 


[PAKT    II. 


duly  or  unduly  the  making  of  a  will  contrary  to  the  natural  dis- 
position of  blood  or  marriage.  Such  opportunities  must  not  bo 
abused  ;  and  whenever  a  will  appears  to  have  been  procured  through 
the  zealouB  inteiwention  of  one  occupying  this  favored  position,  to 
his  own  especial  advantage,  and  to  the  prejudice  of  natural  objects 
of  one's  bounty,  and  especially  where  the  relation  is  of  external 
origin  as  respects  the  testator's  family,  fraud  and  undue  influence 
will  readily  be  inferred,  uuless  all  jealous  suspicion  is  put  to  rest 
by  tlie  evidence  adduced  to  sustain  it.^  At  the  same  time  such  an 
unfavorable  suspicion  amounts  to  notliing  moa'e  than  a  presump- 
tion of  fact,  and  may  always  be  overcome  by  proof  that  a 
testator  of  suitable  intelli2:ence  made  his  will  as  he  saw  fit.'     In- 


the  draftsman  made  alterations  of 
the  instrument  in  his  own  favor  un- 
der such  circumstances.  Yardley  v. 
Cuthbertson,  108  Penn.  St.  395,  56 
Am.  Rep.  231.  Or  that  the  will  d^d 
not  harmonize  with  the  testator's 
general  intentions.  7  Lans.  443 ; 
Morris  v.  Stokes,  21  Ga.  552.  See  4 
Eedf.    (N.  Y.)    409,  441. 

But  secrecy  maintained  in  m:tking 
or  executing  the  will  may  be  satis- 
factorily explained.  §  231.  And  a 
draftsman  or  attorney  may  receive  a 
moderate  legacy  from  a  competent 
testator,  without  raising  assump- 
tion of  unfair  dealing  on  his  part. 
Loder  v.  Whelpley,  111  N.  Y.  239; 
Soule's  Will,  1  Con.  (N.  Y.)  18.  See 
unfavorable  circumstances  in  Lyon  v. 
Dada,  111  Mich.  340,  69  N.  W.  654; 
Caven  v.  Agnew,  186  Penn.  St.  314, 
40  A.  480. 

2.  See  cases  cited  in  preceding  sec- 
tion; Harvey  v.  Sullens,  46  Mo.  147, 
2  Am.  Rep.  491;  Tyler  v.  Gardiner, 
35  N.  Y.  559;  Soulo,  lie,  1  Con.  18; 
Moore  v.  Spier,  80  Ala.  129;  Chappell 
v.  Trent,  90  Va.  849,  19  S.  E.  314;  70 
Vt.  352,  40  A.  1027;  93  N.  Y.  S.  364; 


Cowdry's  Will  60  A.  141,  77  Vt.  359; 
100  N.  Y.  S.  492;  88  P.  338,  31  Utah; 
415;  226  111.  422,  80  N.  E.  992;  Mow- 
rey  v.  Norman,  204  Mo.  173,  103  S. 
W.  15;  157  S.  W.  609.  250  Mo.  632. 
In  Yardley  v.  Cuthbertson,  108  Penn. 
.St.  395,  where  the  testator,  while 
sick  and  enfeebled,  cut  down  former 
legacies  four-fifths  in  a  codicil  wliich 
gave  the  residue  to  his  confidential 
adviser,  it  was  held  that  the  sus- 
picion of  undue  influence  was  infer- 
able, and  required  to  be  repelled.  The 
will  of  a  ward,  giving  all  or  nearly 
all  the  estate  to  the  guardian,  raises 
a  strong  suspicion  of  unfairness 
which  should  be  repelled.  Meek  v. 
Perry,  36  Miss.  190.  But  this  sus- 
picion being  repelled  by  suitable 
proof,  the  will  is  sustained.  Breed  v. 
Pratt,  18  Pick.  115. 

3.  1  Con.  (N.  Y.)  18;  46  N.  J.  Eq. 
515,  22  A.  125.  Evidence  that  the 
testator  made  unequal  gifts  among 
fhis  ne.xt  of  kin  during  his  life  is  ad- 
missible. Eastis  V.  Montgomery,  93 
Ala.  293,  9  So.  311;  186  Penn.  St.  314, 
40  A.  480;  §  245. 


302 


CHAP.  X.]    ERROR,  FRAUD,  AND  UNDUE  INFLUENCE.        §  246 

deed,  the  confidential  relation  that  one  holds  may  often  explain, 
especially  in  a  family  relationship,  why  the  testator  has  desired 
to  bestow  generously  upon  him.^ 

The  bearings  of  ithis  doctrine  may  be  gathered  from  our  previous 
section.  Equity  appears  often  to  have  so  far  presumed  a  fraud, 
where  one  holding  such  a  confidential  relation  takes  a  gift,  as,  at 
least,  to  have  imposed  upon  him  the  onus  of  disproving  it.  Cer- 
tainly no  such  strict  rule  pertains  to  the  law  of  wills ;  ^  and  in 
gifts  of  this  character  the  beneficiary  may  have  been  utterly  ignor- 
ant of  the  giver's  intentions,  and  stand  entirely  clear  of  personal 
influences  upon  the  disposition ;  while  the  gift  itself  remains  rev- 
ocable  and  may  only  be  disclosed  at  the  donor's  death,  when  the 
essential  question  to  be  answered  is,  what  disposiition  shall  tako 
effect  upon  his  estate,  and  when  others  in  interest  and  not  the  donor 
himself  alone,  are  parties  to  any  litigation  for  setting  the  gifts  by 
his  purported  disposition  aside.  All  that  can  be  safely  said  is, 
that  the  especial  gift,  together  with  the  opportunity  for  procuring 
it,  affords  ground  for  suspicion ;  and  that  for  establishing  the  will 
it  must  be  satisfacto'rily  shown  that  the  testator  was  of  sound  mind, 
that  he  clearly  understood  the  contents  of  the  will,  and  that  he  was 
at  the  time  under  no  undue  or  improper  contraint  of  volition,  such 
as  to  destroy  his  own  free  ag-ency.  The  superiority  attached  to 
such  an  influence  is  its  disting-uishing  trait;  the  relation  being  such 
that  the  testator,  especially  if  of  weak  or  declining  power,  leans 
upon  a  guide,  in  whose  honor  he  must  confide,  and  that  honor  a 
court  of  equity  is  bound  to  insist  upon.  Yet  the  strength  of  the 
suspicion  in  each  case  must  depend  upon  its  own  circumstances; 
and  where  it  does  not  appear  that  the  fiduciary  drafted  the  will, 
advised  as  to  its  contents,  or  even  knew  it  was  to  be  made,  there 
can  be  no  imputation  of  fraud  or  undue  influence  so  far,  at  least, 
as  his  connection  with  the  testator  is  concerned,  whatever  reasons 
for  assailing  tlie  will  may  be  founded  in  the  misconduct  or  confi- 
dential relations  of  others.^ 

4.  Lamb   v.    Lippincott,    115   Mich.  5.  See  Parfitt  v.  Lawless,  L.  R.  2  P. 

611,   73  N.  W.   887.  D.  462. 

6.  Bristed   v.   Weeks,   5    Redf.    529. 

303 


246 


LAW  OF  WILLS. 


[part  IL 


The  benefit  thus  derived  by  one  who  holds  a  confidential  rela- 
tion, need  not  be  a  strictly  personal  one  in  order  to  excite  sus- 


To  sustain  a  will  made  in  favor  of 
the  testator's  religious  adviser,  to  tlie 
exclusion  of  the  natural  objects  of 
his  bounty,  there  must  be  some  proof 
besides  the  making  of  it.  But  if  the 
will  is  shown  a  consistent  one,  and 
freely  and  intelligently  made,  it  will 
be  sustained.  Marx  v.  McGlynn,  88 
X  Y.  357;  4  Redf.  (N.  Y.)  455;  6 
Dem.  (N.  Y. )  166.  Even  where  a  re- 
ligious adviser  draws  or  actively  pre- 
pares a  will  in  favor  of  the  church  or 
charitable  institution  which  he  repre- 
sents, ignoring  the  natural  heir, 
slight  circumstances  may  justify  a 
jury  in  inferring  undue  influence. 
lb.;  5  Mo.  App.  390,  Welsh,  Re,  1 
Redf.  (N.  Y.)  238.  And  suspicions 
requiring  an  explanation  may  ba 
raised  by  the  facts  and  surrounding 
circumstances,  even  though  the  will 
in  favor  of  a  clmrch  was  drawn  and 
its  execution  procured  by  vestrymen. 
Drake's  Appeal,  45  Conn.  9.  (Note 
tiie  dissent  in  this  case.)  Cf.  Adams 
V.  Methodist  Church,  96  N.  E.  253, 
251  111.  268  (no  financial  interest). 
Where  a  testator  embraces  spiritual- 
ism, and  the  medium  or  adviser 
alienates  his  affections  from  his  fam- 
ily and  procures  a  will  in  his  own 
favor,  it  should  be  set  aside.  Thomp- 
son V.  Hawks,  14  Fed.  Rep.  902;  7 
Oreg.  7.  As  to  legacies  to  one's 
spiritual  adviser,  see  further  88  Ala. 
462,  7  So.  260.  And  see  Conklin  v. 
Conklin,  131  N.  W.  154,  165  Micii. 
571. 

The  existence  of  friendly  relations 
between  the  testator  and  his  bene- 
ficiary does  not  impute  undue  influ- 
ence.    Stain(tz  v.  Miciionor,  75  N.  E. 


579,  165  Ind.  372;  Kilbourn's  Estate, 
120  P.  762,  158  Gal.  593.  Nor  a  re- 
lation as  housekeeper  and  nurse. 
Richardson  v.  Bly,  63  N.  E.  2,  181 
Mass.  87.  Nor  one's  peculiar  confi- 
dence and  consultation  as  to  favored 
kindred.  McLaughlin's  Will,  59  A. 
892,  69  N.  J.  Eq.  379.  Nor  a  part- 
nership relation.  Brooks's  Estate,  54 
Gal.  471.  No  confidential  adviser  is  to 
be  respected  unless  in  fact  beneficial- 
ly interested  for  himself  or  others 
under  the  will.  Birdseye,  Re,  60  A. 
Ill,  77  Conn.  623,  104  N.  W.  452, 
128  Iowa  496.  And  participating 
actively,  whether  personally  present 
or  not,  in  the  business  of  execution. 
McQueen  v.  Wilson,  31  So.  94,  131 
Ala.  606;  Cornell's  Will,  57  N.  E. 
1107,  163  N.  Y.  608;  Folks  v.  Folks, 
54  S.  W.  837,  107  Ky.  561.  See 
further  72  N.  Y.  S.  421;  Robinson  v. 
Robinson,  53  A.  253,  203  Penn.  400; 
93  N.  Y.  S.  1065;  94  N.  Y.  S.  1064; 
Stewart  v.  Lyons,  47  S.  E.  442,  54  VV. 
Va.  665;  Sperl's  Estate,  103  N.  W. 
502,  94  Minn.  421  (equity  sets  tlie 
bequest  aside)  ;  Evert's  Estate,  125 
P.  1058,  163  Cal.  449  (parol  trust  for 
others  made  by  sole  beneficiary). 

Business  manager  may  be  shown  to 
have  been  dishonest  while  in  control 
of  the  property  during  the  testator's 
life.  Murphy  v.  Murphy,  142  S.  W. 
1018,  146  Ky.  396.  Cf.  Yess  v.  Yess, 
99   N.   E.    697,   255   111.   414. 

Gift  under  a  will  to  one  in  a  fidu- 
ciary relation  is  favored  more  tlian 
such  gifts  inter  vivos.  Yess  v.  Yess, 
supra.  But  gifts  or  transfers  made 
prior  to  the  will  may  be  shown. 
Crumb's  Estate,  127  N.  Y.  S.  269. 


304 


CHAP.  X.]    EKEOR,  FRAUD,  AND  UNDUE  INFLUENCE.        §  247 

picion ;  ^  for  undue  advantages  procured  for  those  of  his  own  house- 
hold, or  church  fellowship,  for  institutions  or  business  establish- 
ments in  which  he  is  strongly  interested,  and  the  like,  may  in  a 
broad  sense  be  intended  for  his  own  benefit;  and  so,  too,  where, 
to  gratify  some  strong  dislike  of  his  own,  he  gets  the  testator  to 
disinlierit  a  blood  relation.  But  the  fairer  and  more  disinterested 
the  influence  he  exerts,  the  less  does  the  confidential  adviser  expose 
himself  to  suspicion.^ 

§  247.  Proof  that  the  Testator  knew  the  Contents  of  the  Will. 
Where  error,  fraud,  or  undue  influence  is  charged,  stricter  proof 
than  usual  may  be  needful  to  show  not  only  capacity,  but  that  the 
testator  knew  the  contents  of  the  instrument  he  executed.  In  ordi- 
nary cases,  to  be  sure,  the  fonual  execution  of  the  will  by  a  person 
who  can  read  and  write  imports  a  knowledge  of  its  contents.^  But 
where  it  is  shown  ithat  the  testator,  being  blind,  illiterate,  or  very- 
feeble,  could  not  have  gained  this  knowledge  unaided,  more  positive 
proof  that  he  actually  knew  and  assented  is  required  to  repel  any 
suspicion  which  circumstances  may  have  east  upon  the  good  faith 
of  the  transaction ;  as,  for  instance,  where  the  draftsman  or  party 
managing  the  execution  of  such  a  person's  will  takes  a  dispro- 
portionate interest  under  it.^     It  is  not  necessary  to  prove  in  such 

As  to  a  physician  who  was  made  sole  6  Dem.   84;   Grove  v.  Spiker,   72  Md. 

legatee,  see  6  Dem.  299.  300    (where  a   stranger  went  to  live 

7.  See  Welsh,  Re,  1  Redf.  238;  with  a  weak-minded  woman,  and  soon 
Drake's  Appeal,  45  Conn.  9;   Barkley  gained  great  dominion  over  her). 

V.  Cemetery  Assn.,  54  S.  W.  482,  153  9.  Beall   v.   Mann,    5    Ga.    456;    20 

Mo.  300.     The  disfavor  with  which  a  Ga.   709;   Frear  v.  Williams,  7  Baxt. 

bequest  from  a  ward  to  his  guardian  550;    Vernon   v.    Kirk,    36   Penn.    St. 

is   regarded    extends   to   a   bequest   to  268;    Pettes    v.    Bingham,    10    N.    H. 

the    guardian's     wife.       Bridwell     v.  514;    Downey  v.  Murphey,   1   Dev.   & 

Swank,  84  Mo.  455.     And  see  43  N.  J.  B.    82;    Smith   v.    Dolby,    4   Harring. 

Eq.  154,  10  A.   862.  350. 

8.  Tlie  fact  that  the  person  largely  1.  Davis  v.  Rogers,  1  Houst.  44; 
benefited  lived  with  the  testator  es-  Hughes  v.  Meredith,  24  Ga.  325,  71 
tablishes  a  confidential  relation  in  a  Am.  Dec.  127;  Kelley  v.  Settegast,  68 
sense.    116  Penn.  St.  612,  11  A.  410;  Tex.   13,  2  S.  W.  870;   115  Penn.  St. 

20  305 


§  248  LAW  or  WILLS.  [part  ii. 

cases  that  tlie  will  was  read  over  to  the  testator,  nor  to  show  written 
instmotions  from  him;  but  it  should  appear  that  in  some  way  its 
contents  were  correctly  imparted  to  him  and  corresponded  with  his 
wishes.^  And  it  should  be  borne  in  mind,  that  where  fraud  or 
undue  influence  is  imputed,  proof  of  the  testator's  actual  knowl- 
edge of  contents  and  soundness  of  mind  do  not  alone  establish  the 
will,  but  his  free  volition  should  appear  besides.^ 

§  248.  Probate  in  Part,  where  Fraud,  Undue  Influence,  etc.,  op- 
erated in  Part. 

It  is  considered  by  good  English  and  American  authorities,  that 
wheire  fraud  or  undue  influence  has  been  exercised  in  obtaining 
advantages  under  a  will,  the  whole  will  is  not  necessarily  vitiated, 
but  the  gifts  thus  wrongfully  obtained  may  be  declared  invalid  if 
separable,  while  the  will  is  in  other  respects  admitted  to  probate.* 
So,  too,  the  wrongful  alteration  or  insertion  of  a  pecuniary  legacy 
in  a  will,  by  the  legatee  or  a  stranger,  is  held  not  to  avoid  the  will 
as  to  other  bequests.^  And  the  same  would  appear  to  hold  true 
where  such  alteration  has  been  innocently  made.®     For  if  the  fraud 

32,    2    Am.    St.    Rep.    525,    8   A.    219;  1  Harring.  454.     See  as  to  blind  tes- 

Lyons  v.  Campbell,  88  Ala.  462,  7  Sn.  tators,  etc.,  §§   96-99,  supra. 

250;   Wilbur  v.   Wilbur,  129   111.   392.  3.  Yardley      v.      Cutlibertson,      lOS 

See  100  N.  Y.  S.  422.  Penn.  St.  395,  56  Am.  Rep.  218. 

2.  lb.;    Barry    v.    Butlin,    1    Curt.  4.  Allen  v.  M'Pherson,  1  H.  L.  Cas. 

637;  Moore  V.Moore,  2  Bradf.    (N.  Y.)  191;    1  -Jarm  36;   Welsh,  Re,  1  Redf. 

261;  Huss's  Appeal,  43  Penri.  St.  73.82  (N.   Y. )    238;    Trimlestown    v.   D'Al- 

Am.  Dec.   551;   Day  v.  Day,  2  Green  ton.    1    Dow    (N.    S.)    85;    Morris   v. 

Ch.    549.      Thu-s,    it   might   be   shown  Stokes,   21   Geo.   552;   Harrison's   Ap- 

that  the  will  was  copied  from  a  pre-  peal,  48   Conn.   202;    54  Conn.   119,   6 

vious   paper   whose   contents   the  tes-  A.   198. 

tator  fully  understood  and  approved.  See  as  to  probate,  Schoul.  Exrs.   § 

Day  V.  Day,  supra.     But  if  it  appear  85   (Vol.  II.). 

that  essential  alterations  or  devia-  5.  Smith  v.  Fenner,  1  Gall.  170; 
tions  were  made  in  the  copying,  fur-  Morrell  v.  Morrell,  7  P.  D.  68. 
ther  proof  is  needful  to  show  tiiat  the  6.  lb.  •  And  see  Whitlock  v.  Ward- 
alterations  or  deviations  were  ex-  law,  7  Rich.  453;  91  Penn.  St.  236; 
pressly  understood  and  approved,  or  Wombacher  v.  Bnrthelme,  62  N.  E. 
♦•Ise  that  the  instrument  stands  in  800,  194  111.  425  (fraudulent  inser- 
its    final    form.      Chandler    v.    Ferris,  tion      of      executor's      name,      etc.); 

306 


CHAP.  X.]    ERROR,  FRAUD,  AND  UNDUE  INFLUENCE.        §  249 

or  error  tended  plainly  to  some  partial  and  particular  result  while 
tbe  instrument  as  a  whole  embodied  the  separable  disposition  of 
a  person  of  sound  and  disposing  mind  and  free  volition,  the  itestator 
having  fully  deteraiined  to  make  his  will,  innocent  legatees  ought 
not  to  be  punished  indiscriminately  and  needlessly  with  those  who 
were  in  the  wrong.  But  to  separate  for  probate  tlie  volition  and 
non-volition  portions  of  a  will  is  no't  commonly  practicable;  for 
fraud  and  undue  iniluence  are  found  usually  to  have  permeated  the 
whole  disposition  and  even  to  have  set  the  alleged  testator  to  mak- 
ing it.  Hence  we  may  lay  it  down,  that  fraud  or  undue  influence 
in  p'rocuring  one  legacy  or  devise  does  not  invalidate  other  legacies 
or  devises  which  evidently  proceed  from  the  free  will  of  a  compe- 
tent testator,  and  are  separable ;  but  if  the  fraud  or  undue  influence 
taints  inseparabl}'  the  entire  will,  though  exerted  by  or  in  behalf 
of  one  legatee  only,  the  whole  disposition  must  fail.^  In  other 
words,  where  part  of  a  will  has  been  introduced  through  fraud,  or 
perhaps  inadvertence,  it  may  be  rejected,  and  probate  granted  of 
the  residue,  if  the  two  are  severable;  but  not  otherwise.^ 

-§  249.  In  General,  a  Full  Probate  does  not  insure  against  a  Par- 
tial Failure  in  Effect. 
On  the  other  hand,  a  decree  of  the  court  of  probate  not  appealed 
from  does  not  absolutely  conclude  that  all  its  provision's  are  valid 
in  their  full  effect,  as  they  appear  expressed,  but  construction  or 
further  litigation  may  establish  to  the  contrary.  As  if  a  person 
too  young  under  the  statute  to  make  a  will  of  realty,  but  old  enough 
to  make  one  of  personalty,  should  execute  a  testament  embracing 

Holmes   v.    Campbell,    125    P.    25,    87  itself;   for  this  would  allow  fraud  to 

Kan.  597,  41  L.  E,.  A.    (N.  S.)    1126  protect  fraud.     Lee  v.   Colston.   5   T. 

(special  delusion  as  to  part  of  will).  B.   Mon.   246.     Cf.   19   Ohio   St.   546; 

7.  Florey   v.   Florey,   24   Ala.   241;  §   605. 
Welsh,  Re,  1  Redf.   (N.  Y.)   238;  Ba-  8.  Rhodes   v.   Rhodes,    7   App.    Gas. 

ker's  Will,  2  Redf.   179.  192.     A  codicil  which  ought  to  fail  is 

The  inquiry  whether  the  will   was  thus  severable  from  a  valid  will  and 

procured  through  fraud  or  undue  in-  prior  codicils.     See   Ogden   v    Green- 

fluence  cannot  be  stifled  by  any  pro-  leaf,    143    Mass.    349,    9   N.    E.    745; 

Jiibition  contained   in  the   instrument  §  234  supra. 

307 


§  250 


LAW  OF  WILLS. 


[part    II. 


both  kinds ;  ^  or  where  the  will  can  be  pronounced  inoperative  and 
void  in  parts,  in  consequence  of  the  subject-matter  and  the  char- 
aoter  of  the  disposition  attempted.^  If  the  will  may  take  effect 
in  any  part,  it  is  properly  admitted  to  probate,  notwithstanding 
some  of  its  provisions  should  prove  void  eventually  from  one  cause 
or  another.^ 

§  250.  Full  or  Partial  Failure  of  Probate  through  Incapacity, 
Fraud,  Error,  etc. 

In  fact,  courts  of  probate  exercise  complete  control  over  the  will, 
in  case  of  fraudulent  insertion  or  alteration,  or  of  incapacity  dur- 
ing the  execution  of  some  specific  part  of  the  will."  A  word  or 
clause  in  the  will  introduced  by  mistake  or  fraud,  without  the  tes- 
tator's knowledge  or  approval,  may,  at  judicial  discretion,  be 
striken  out,  leaving  a  court  of  construction  to  supply  the  true 
meaning.*  A  will  defaced  or  mutilated  by  a  testator  while  non 
compos  is,  if  possible,  to  be  pronounced  for  in  its  original  integ- 
rity.^    Codicils,  moreover  (which  are  as  much  a  part  of  wills  as 


9.  Dickinson  v.  Hayes,  31  Oonn. 
417.  It  was  here  held  that  the  will 
might  be  contested  in  an  ejectment 
suit,  notwithstanding  the  probate. 
But  cases  of  this  sort  can  seldom 
arise  outside  the  probate  court,  as 
legislation  now  provides.  See  supra, 
§§   39-44,  as  to  disability  of  infants. 

1.  Bent's  Appeal,  35  Conn.  523;  38 
Conn.   26. 

In  Aumack  v.  .Jackson,  78  A.  749, 
78  N.  J.  Eq.  189,  effort,  made  in  a 
court  of  equity  to  establish  a  parol 
constructive  trust  in  property,  was 
overcome  by  proof  of  undue  influence 
exerted.  See  Evert's  Estate,  125  P. 
1058,  163  Cal.  449  (promise  by  sole 
beneficiary  to  distribute  part  among 
certain   charities). 

2.  George  v.  George,  47  N.  11.  27. 
And   see  §   452a;    Schoul.    K.\rs.   §   95 

(Vol.   II.). 


3.  Welsh,  Re,  1  Redf.  (N.  Y.)  238, 
248;  Ogden  v.  Greenleaf,  143  Mass. 
349,  9  N.  E.  745.  In  case  of  the  lim- 
ited legal  capacity  of  an  infant  or 
married  woman  to  dispose  by  will,  a 
partial  probate  has  sometimes  been 
granted.  See  1  Pick.  239;  Holman  v. 
Perry,  4  Met.  492;  156  Mass.  483,  31 
N.  E.  638.  The  instances  must  be 
rare  where  part  of  a  will  can  be  up- 
held and  part  rejected  on  an  issue  of 
mental  incapacity.  See  Hildreth  v. 
Hildreth,  156  S.  W.  144,  153  Ky.  597. 

4.  Morreli  v.  Morrell,  7  P.  D.  68; 
Duane's  Goods,  2  S.  &  T.  590;  supra, 
§  248;  Rockwell's  Appeal,  54  Conn. 
119,   6  A.   193. 

5.  Scruby  v.  Fordham,  1  Add.  74; 
3  Ilagg.  754;  Batton  v.  Watson,  13 
Geo.  63,  58  Am.  Dec.  504. 


108 


CHAP.  S.]    ERROR,  FRAUD,  AND  UNDUE  INFLUENCE.       §  251b 

if  actually  iiLoorporated  into  the  instrument,  and  draw  the  will 
down  to  their  date),  are  on  similar  grounds  rejected,  leaving  the 
will  to  operate  without  one  or  anotiier  of  them,  as  justice  may 
require.® 

§  251.  Inspection  of  Instrument  by  Jury. 

Where  the  issue  of  mental  capacity  or  undue  influence  is  raised, 
land  a  jury  tries  the  question  of  fact,  the  antJientioation  of  the  in- 
strument in  probate  in  due  form  of  law  should  he  determined  by 
the  court.  But  the  instrument  in  contest  may  be  submitted  for  in- 
spection to  the  jury ;  and  there  is  no  impropriety  in  allowing  tbis 
inspection,  before  the  evidence  is  given,  but  often  ithe  reverse ;  since 
the  evidence  must  be  tested  by  the  instrument  in  question.'^  The 
instrument  oifered  should  of  course,  in  such  a  case,  be  considered 
in  connection  with  the  other  evidence  adduced,  and  not  by  itself 
alone.^ 

§  251a.  Mental    Capacity    and    Undue    Influence    are    Distinct 
Issues. 

In  a  controversy  over  the  probate  of  an  instrument  as  one's  last 
will  and  testament,  mental  capacity  and  undue  influence  are  dis- 
tinct issues,  and  probate  may  be  refused  on  the  one  ground  or  the 
other.^ 

§  251b.  Undue  Influence:    Subsequent  Parol  Assent  of  Testator 
Insufficient. 
If  a  will  be  invalid  when  actually  executed,  by  reason  of  undue 

6.  Brounker  v.  Brounker,  7  Phil-  8.  Vance  v.  Upson,  66  Tex.  476,  1 
lira.  57;  Sherer  v.  Bishop,  4  Bro.  C.  S.  W.  179;  Middlewitch  v.  Williams, 
C.  55;  Billinghurst  v.  Vickers,  1  45  N.  J.  Eq.  726,  17  A.  826. 
Phillim.  187;  1  Wms.  Exrs.  42;  1  9.  See  Dexter  v.  Codman,  148 
Bradf.  IN.  Y.)  .360;  143  Mass.  349,  »  Mass.  121,  19  N.  E.  517,  where  the 
N.  E.  745.  And  see  Schoul.  Exrs.  court  set  aside  the  finding  of  a  jury 
§  85   (Vol.  II.).  on  the  former  ground,  but  sustained 

7.  Bees  v.  Stille,  38  Penn.  St.  138.  it  on  the  latter. 

309 


§  251b  LAW  OF  WILLS.  [pART  II. 

influence  or  coercion,  a  subsequent  parol  assent  bj  the  testator, 
•after  the  sinister  pressure  is  removed,  cannot  make  it  valid ;  for 
there  must  be  republication  by  him  such  as  the  law  permits,  or  else 
a  new  will.^ 

1.  Ohaddick  v.  Haley,  81  Tex.  617,  repel   the    inference   that   coercion   or 

17  S.  W.  233;   §§  441-450,  post.     But  undue  influence  had  been  exerted  ef- 

parol     act3     of     the     testator     after  fectually.     See  §§  234,  239  supra,  and 

execution,  importing  an  assent,  may  cases  cited. 

310 


PART  III. 

FORMAL  REQUISITES  OF  A  WILL. 


CHAPTER  I. 

WHAT    CONSTITUTES   A   WILL. 

§  252.  Wills  are  written  or  unwritten;  Modern  Legislation  re- 
quires most  Wills  to  be  in  Writing  and  duly  witnessed. 

Having  finislicd  our  subject  of  testamentary  capacity,  and 
dealt  sufficiently  with  the  person  who  makes  a  will,  let  us  now  pro- 
ceed to  consider  the  testamentary  insitrument  itself  and  its  essen- 
tial constituents.  As  to  the  general  nature  of  a  will  our  law  sets 
forth  two  kinds :  (1)  the  written,  and  (2)  the  oral  or  nuncupative. 
But  ait  the  present  day,  the  statutes  both  of  England  and  the  vari- 
ous American  States,  insist,  that,  with  a  few  stated  exceptions,  all 
wills,  whether  relating  to  real  or  personal  property,  or  to  both,  shall 
be  expressed  in  writing,  and  moreover  that  this  written  instrument 
shall  be  formally  executed  in  presence  of  a  stated  number  of  wit- 
nesses. The  effect  of  such  legislation  is  to  abolish  much  of  the 
old  learning  which  pertains  to  the  subject,  and  leave  our  testament- 
ary law  to  shape  itself  in  a  modern  and  more  precise  mould.  Even 
so  recent  a  writer  as  Blaekstone  ceases  to  be  a  standard  authority ; 
for,  while  conceding  that  the  Statute  of  Frauds,  29  Car.  II.  c.  3, 
has  laid  nimcupative  or  unwritten  wills  under  many  restrictions, 
he  draws  the  line  boldly  beitween  devises  of  real  estate  and  wills 
of  personal  property,  as  constituting  dispositions  of  quite  a  differ- 
ent nature;  and  as  to  the  latter  kind,  lays  it  down  that  they  need 
no  witnesses,  nor  even  the  testator's  own  signature,  if  only  the  tes- 
tator be  shown  to  have  written  it  oir  caused  it  to  be  written.^  This 
unquestionably  was  English  law  when  Blaekstone  discoursed ;  but 
what  that  eminent  expounder  pointed  out  as  the  safer  and  more 

1.  2  Bl.  Com.  501,  503. 

311 


§    253  LAW  OF  WILLS.  [PAKT    III. 

prudent  way,  and  indeed  the  method  wliicii  in  Bracton's  early  .time 
borrowed  a  sanction  from  Roman  jurisprudence,  namely,  tliat  the 
will  be  signed  [or  sealed]  by  the  testator,  and  published  in  the 
presence  of  witnesses,^  has,  since  1838,  become,  for  real  and  per- 
sonal pix)perty  alike,  the  imperative  rule  in  England ;  ^  while  in 
this  country,  where  the  feudal  system  never  found  a  chance  to  take 
root,  local  experience  brought  various  local  legislatures  severally 
to  the  same  discreet  and  harmonizing  policy.  29  Car.  II.  put  the 
first  strong  curb  in  both  countries  upon  frauds  and  perjuries  in 
wills  of  personal  property ;  and  from  that  landmark  of  legislation 
the  sturdy  sense  of  both  England  and  most  American  States  worked 
independently  towards  the  more  radical  reform,  here  embodied  in 
various  local  enactments  differing  somewhat  in  general  p^rinciple, 
but  there  in  the  statute  of  1  Vict.  c.  26,  passed  in  1837,  and  fa- 
miliarly styled  the  Statute  of  Wills.* 

§  253.  Real  and  Personal  Property  now  treated  alike;  but  not 
so  formerly. 

While  the  former  differences  prevailed  in  point  of  formality, 
which  the  Statute  of  Frauds  did  not  pretend  to  overcome,  it  would 
often  happen  that  a  will  which  sought  to  dispose  of  both  real  and 
personal  property  would  take  effect  as  to  the  latter,  but  fail  as  to 
the  former  for  insufficiency  in  signing,  sealing,  or  witnessing.  But 
by  Stat.  1  Vict.  c.  26,  the  same  formalities  concerning  execution 
and  attestation  (but  with  two  instead  of  three  witnesses)  are  pre^ 
scribed  for  property  of  every  description ;  and  upon  all  wills  made 
in  English  jurisdiction  later  than  18'37  does  the  new  rule  operate.^ 

In  this  country  the  prevailing  policy  at  this  day  makes  no  dis- 
tinction of  fonnalities  between  the  different  kinds  of  property; 

2.  2  Bl.  Com.  502.  kind  of  testamentary  act  taking  effect 

3.  1  Wms.  Exrs.  Preface;  2  Jann.  from  the  mind  of  the  testator  and 
Wills,  Appendix.  manifested  by  an  instrument  in  writ- 

4.  Se«  supra,  §§  14-16.  ing.     Bayley  v.  Bailey,  5  Cush.  245. 
Tlie   term    "will"    in    our    modern  5.  Sec  preface  to  1  Wms.  Exrs.;   Z. 

leiMslation    has    a    broad    scope,    and      Jarm.   W^ills,  Appendix, 
may  usually  be  said  to  include  every 

312 


CHAP.    I.] 


WHAT  CONSTITUTES  A  WILL. 


§    253 


but  tliie  will,  whatever  the  description  of  property  to  which  it  re- 
lates (and  property  real,  personal,  or  mixed,  are  in  these  days 
usually  embraced  together),  requires  the  same  mode  of  subscription 
and  attestation.  Yet  there  appear  to  be  a  very  few  States  of  this 
Union  still,  where  wills  of  real  estate  must  be  executed  and  attested 
with  formalities  less  indispensable  for  disposing  of  personalty.^ 


6.  The  legislation  of  most  of  our 
American  States  on  this  subject  was 
based  upon  the  English  Statute  of 
Frauds,  insisting  that  three  (or  at 
least  two)  witnesses  shall  subscribe, 
and  that  the  will  of  real  estate  itself 
shall  be  in  writing  and  signed  by  the 
testator.  From  this  starting  point 
of  a  devise,  legislation  and  practice 
tended  to  the  requirement  that  wills 
of  personal  property  should  be  in 
writing  and  similarly  executed  and 
attested;  and  at  length  the  local  law 
has  reached  a  general  and  uniform 
system.  Wills  must  now  be  written 
and  attested  by  either  two  or  three 
witnesses,  as  the  legislature  may  have 
preferred,  but  with  the  same  number 
for  both  real  and  personal  property. 
Many  States  model  their  testament- 
ary law  after  the  Massachusetts 
statute,  which  dates  back  to  1836, 
and  requires  wills  both  of  real  and 
personal  estate  to  be  in  writing  and 
signed  by  the  testator,  or  by  some 
person  in  his  presence,  and  by  his 
express  direction,  and  attested  and 
soibscribed  in  his  presence  by  three 
or  more  competent  witnesses.  In  this 
State  the  English  Statute  of  Fraud? 
was  reenacted  in  1783;  and  the  ex- 
tension to  personal  property  ante- 
dates by  a  year  the  English  enact- 
ment of  Victoria. 

Various  States,  again,  have  cop'ed 
the  New  York   statute,  whose  verbal 


expression  is  quite  different,  and 
which  requires,  like  the  new  English 
statute  of  Victoria,  two  instead  of 
three  witnesses.  See  McElwaine,  Re, 
18  N.  J.  Eq.  499.  There  are  others 
of  the  original  States,  such  as  Penn- 
sylvania and  Virginia,  whose  legis- 
lation on  the  subject  does  not  re- 
semble that  of  either  Massachusetts 
or  New  York.  See  Hegarty's  Ap- 
peal, 75  Penn.  St,  503.  In  Pennsyl- 
vania, a  subscription  by  witnesses  ia 
in  many  instances  dispensed  with. 
§  256,  post. 

The  laws  of  South  Carolina  for- 
merly required  three  witnesses  to  a 
will  of  real  estate  only;  but  the  same 
formality  is  now  extended  to  wills  of 
personalty.  On  the  other  hand,  in 
Mississippi,  wills,  if  not  wholly  writ- 
ten out  by  the  testator,  require  the 
attestation  of  three  witnesses  for  real 
estate,  and  only  one  for  personalty. 
In  Tennessee,  the  code  discriminates. 
Davis  v.  Davis,  6  Lea,  543.  See  the 
local  statutes  referred  to;  also  1 
Jarm  Wills,  77,  Am.  Ed. ;  holograph 
wills,  post.  When  Chancellor  Kent 
wrote  his  Commentaries,  wills  with  a 
formal  execution  by  the  testator  and 
witnesses  were  scarcely  required  in 
the  United  States  except  for  devising 
real  estate.     See  4  Kent  Com.  505. 

The  civil  code  of  Louisiana  embod- 
ied a  system  altogether  unique,  which 
other  States  do  not  adopt.     All  wills. 


§    255  LAW  OF  WILLS.  [pART    IIL 

§  254.  But  American   Statutes  relating  to   Wills   are  of   Local 
Origin. 

But  here  let  us  remark,  what  never  should  be  forgotten,  that  our 
various  American  statutes  relating  to  wills  are  of  local  and  inde- 
pendent origin ;  and  (though  their  strong  tendency  is  to  harmonize 
in  general  essentials,  they  always  differed  and  must  continue  to 
differ  in  particulars  as  well  as  mode  of  expression ;  and  that  while 
the  local  disinclination  to  change  such  statutes  is  founded  in  obvi- 
ous reasons,  every  radical  change  in  State  legislation  must  be 
held  to  operate  by  its  local  date  of  enactment. 

All  this  ser\'es  as  a  caution  preliminary  to  discussing  the  formal 
requisites  of  a  testament ;  and  to  add  to  the  confusion  of  precedents 
we  must  observe  further,  that  the  testamen/tary  law  of  continental 
Europe  has  influenced  various  States  at  the  South-west,  colonized 
by  French  and  Spanish  settlers, — Mississippi  and  Louisiana,  for 
instance, — in  favor  of  holographs  and  other  peculiar  modes  of  tes- 
tamentary disposition  with  which  the  pure  Anglo-Saxon  stock  was 
little  familiar. 

§  255.  Holograph  Wills;  how  far  recognized  by  Legislation. 

Under  statutes  like  those  of  England,  Massachusetts,  and  New 
York  at  the  present  day,  and,  indeed,  by  the  policy  which  now 
prevails  throughout  England  and  most  parts  of  the  United  S/tates, 
holograph  wills,  or  those  written  out  by  the  testator's  own  hand, 
stand  on  no  privileged  footing,  but  require  to  be  attested  like  any 
other  testaments.'^     Of  such  wills  of  chattels,  to  be  sure,  it  was  foT- 

are    here    divided    into   three    leading  Mich.    Law    Review    486,    Sidney    T. 

classes:       (1)     nuncupative    or    open  Miller   (1914). 

will.H   (which  have  acquired  a  peculiar  7.  As  to  the  Scotch  law  favoring  a 

signification   in   Louisiana   practice)  ;  holograph  letter,  when  witnessed,  see 

(2)    mystic  or  sealed  wills;    (3)    olo-  Halford    v.    Halford     (1897),    P.    36. 

graphic    (or    holograph)    wills.      Tiie  And    see    Whyte   v     Pollock,    7    App. 

details  of  execution  in  each   instance  Cas,  400;  Turell's  Will,  59  N.  E.  910, 

are  set  forth  minutely.     See  La.  Rev.  166   N.  Y.   330    (holograph   wills   not 

Civ.  Code,  §  1567  et  seq.  exceptional    in    solemnities    of    execu- 

For  notes  of  interesting  English  and  tion). 
American    wills    in    history,    see    12 

314 


ciiAr.  I.] 


WHAT   CONSTITUTES  A   WILL. 


255 


merly  held  that  if  the  name  of  the  testator  was  writte-n  by  himself 
in  any  part  of  the  instrument,  his  final  signature  at  the  end  might 
well  be  dispensed  with ;  *  and  it  must  ever  be  taken  ithat  writing 
one's  own  will  affords  the  strongest  proof  of  authenticity  and  a 
deliberate  purpose ;  yet,  whoever  writes  out  the  will,  the  same 
necessity  exists  at  the  present  day,  for  a  formal  signature,  and  a 
specified  number  of  subscribing  witnesses. 

But  in  a  few  of  the  States  holograph  wills  are  expressly  recog- 
nized, following  usually  the  Louisiana  civil  code  on  this  subject,^ 
but  in  some  instances  originating  in  the  old  English  colonial  law. 
The  holograph  will,  under  such  statutes,  dispenses  with  subscrib- 
ing witnesses  and  the  usual  proof  of  a  formal  execution ;  but  these 
codes  require  it  to  be  entirely  written,  dated,  and  signed,  by  the 
testaitor's  own  hand.^  This  handwriting  being  proved,  the  will  be- 
comes legally  established.^     The  Tennessee  and  North  Carolina 


8.  Griffin  v.  Griffin,  4  Ves.  197  n.; 
Coles  V.  Trecothick,  9  Ves.  249;  3  Lev. 
1;  3  Bl.  Com.  501;  Gilb.  260.  "1 
speak  not  here  of  devises  of  lands, 
which  are  quite  of  a  different  nature, 
being  conveyances  by  statute,  un- 
known to  the  feudal  or  common  law, 
and  not  under  the  same  jurisdiction 
as  personal  testaments ;  but  a  testa- 
ment of  chattels,  written  in  the  tes- 
tator's own  hand,  tliougli  it  has 
neither  his  name  nor  seal  to  it,  nor 
witnesses  present  at  its  publication, 
is  good,  provided  sufficient  proof  can 
be  had  that  it  is  his  handwriting." 
2  Bl.  Com.  501.  Though  written  in 
another  man's  hand,  and  never 
signed  by  the  testator,  it  might  be 
proved  to  be  according  to  his  instruc- 
tions and  approved  by  him;  but  such 
establishment  of  a  will  was.  of 
course,  more  difficult.  See  ib.  And 
see  Zerega  v.  Percival,  46  La.  Ann. 
590. 

9.  La.   Civ.  Code,   arts.   1581,   1588. 


1.  Ib.  But  cf.  Regan  v.  Stanley, 
11  Lea,  316;  Myrick  Prob.  (Cal.)  5. 
It  is  sufficient  compliance  with  the 
Louisiana  code,  that  tlie  holograph 
will  bears  date  in  a  certain  month 
and  year  without  naming  the  day. 
Gaines  v.  Lizardi,  3  Woods  C.  Ct.  77, 
66  P.  96.  Expressing  a  legacy  or  a 
date  in  figures  is  a  sufficient  writing 
out.  49  La.  Ann.  107,  21  So.  191,  62, 
Am.  St.  Rep.  642;  Chevallier's  Es- 
tate,   113    P.    130,    159    Cal.    151. 

A  mere  caption  "  my  will,"  etc.,  in 
another  handwriting  is  immaterial, 
36  So.  539,  83  Miss.  793.  Nor  need 
the  place  of  execution  be  stated. 
Stead  V.  Curtis,  191  F.  529.  But  as 
in  other  wills  the  subject  of  the  in- 
tended gift  and  the  subject-matter 
should  be  mentioned,  described  or 
identified  therein,  for  the  court  will 
not  supply  a  palpable  omission. 
Dreyer  v.  Reisman,  96  N.  E.  90,  202 
N.   Y.   476:    §   584  post. 

2.  13  S.  &  M.  406;   11  Humph.  377, 


315 


255a 


LAW  OF  WILLS. 


[part  III. 


codes  guard  such  a  will  with  still  greater  caution  in  some  respects ; 
the  writing  musit  come  from  unsuspected  custody  for  safe-keeping 
or  be  found  among  the  testator's  valuable  papers,  in  order  to  be 
thus  privileged.^  Such  statutes  are  usually  mandatory  as  to  the 
formality  prescribed,  so  far  as  the  local  jurisdiction  is  concerned.^* 

§  255a.  Will  drawn  up  by  another. 

One's  will  is  frequently  drawn  up  by  another  under  the  testa- 
tor's oral  or  written  instructions.  Whenever  in  such  a  case,  the 
language  employed  by  the  scrivener  faithfully  embodies  the  in- 
structions and  expresses  the  testator's  intent,  a  variation  from 
lateral  dictation  is  immaterial.^  And  even  an  honest  mistake  of 
expression  by  the  scrivener  may  bind  the  estate  disposed  of,  where 
the  will  afterwards  became  duly  executed,  as  the  testator  was  un- 
derstood to  intend  it.^  Generally  speaking,  where  neither  fraud 
nor  undue  influence  affects  the  transaction,  one  who  prepares 
another's  will  may  induce  him  to  accept  changes,  whether  in  form 
or  substance,  so  that  the  will  as  actually  executed  by  a  capable 


465;  Davis  v.  Williams,  57  Miss.  843. 
If  a  printed  form  is  filled  up  by  the 
testator,  this  is  not  a  holograph  will. 
Rand's  Estate,  61  Cal.  468,  44  Am. 
Rep.  555.  See  Richardson's  Estate, 
94  Cal.  63,  29  P.  484,  where  a  letter 
of  inquiry  was  held  not  testamentary. 
Formal  subscription  of  the  testator's 
name  at  the  end  of  such  a  will  is  un- 
necessary, if  the  name  is  written  else- 
where.    112  Cal.   513,  44  P.  1028. 

For  a  holographic  will,  inntificial 
in  its  expression,  but  neveitheless 
sustained  as  a  devise  of  land,  see  Als- 
ton V.  Davis,  118  N.  C.  202. 

3.  Tate  v.  Tate,  11  Humph.  465; 
91  N.  C.  26;  Bryan  v.  Barnard,  90  S. 
W.  858,  115  Tenn.  260,  112  Am.  St. 
Rep.  822;  Jenkins's  Will,  72  S.  E. 
1072,  157  N.  C.  429;  61  So.  685,  132 
La.   606. 

Holograph  wills  are  favond  in  the 


wills  acts  of  Kentucky,  Tennessee, 
Mississippi,  California,  and  Louis- 
iana. So,  too,  as  it  appears,  by  the 
codes  of  Arkansas,  North  Carolina, 
Texas,  Virginia  and  West  Virginia. 
The  Arkansas  statute  requires  a  holo- 
graph will  to  be  proved  by  three  dis- 
interested witnesses,  swearing  to 
their  opinion,  though  no  subscribing 
witness  is  needed.  See  also  34  Fed. 
82;  Stimson's  Am.  Stat.  Law,  §  2645. 
No  such  holographic  will  can  bar  a 
will  in  the  ordinary  form. 
3a.  Jenkins's  Will,  ib. 

4.  See  46  La.  Ann.  155,  1412,  15 
So.  1S7,  16  So.  389,  where  a  notary 
wrote  out  the  will  under  the  code,  at 
the  dictation  of  the  testator  before 
witnesses. 

5.  Chilcott's  Goods,  (1S97)  P.  223; 
Collins   V.  Elstone,    (1893)    P.   1. 


;iG 


CHAP.    I.] 


WHAT  CONSTITUTES  A  WILL. 


§    256 


disposer^  becomes  by  adoption,  his  own  will,  and  the  mind  of  the 
scrivener  is  the  mind  of  tlie  testator  himself.'' 

§  256.  Other  Statute  Peculiarities  as  to  Form,  Signature,  and 
Attestation. 

In  other  respects  a  few  American  codes  contain  peculiar  pro- 
visions as  to  the  form,  signature,  and  attestation  of  wills.  Thus 
the  Pennsylvania  statute  appears  to  have  long  dispensed  with  for- 
mal attestaition,  even  in  a  devise  of  lands,  provided  the  authenticity 
of  the  will  can  be  proved  by  at  least  two  competent  witnesses.^ 


6.  Cf.  §§  245,  246.  See  Sheer  v. 
Sheer,  159  111.  591,  43  N.  E.  334.  But 
cf.  as  to  a  fraudulent  or  mistaken 
interpolation  of  which  the  testator 
knew  nothing;  Moore's  Goods,  (1892) 
P.  378. 

7.  See  1  Jarm.  Wills,  Am.  Ed. 
Bigelow's  note;  Higlit  v.  Wilson,  1 
Dall.  94;  1  Watts,  463.  Proof  of 
the  testator's  signature  thus  aflforded 
is  prima  facie  evidence  of  its  execu- 
tion though  the  will  was  not  a  holo- 
graph. Wiegel  V.  Wiegel,  5  Watts, 
486.  As  to  his  holograph,  see  131 
Penn.  St.  220,  6  L.  R.  A.  353,  17  Am. 
St.  Rep.  798,  18  A.  1021;  Tozer  v. 
Jackson,  164  Penn.  St.  373,  30  A.  400. 
If  the  testator  be  in  extremis,  his 
signature  is  dispensed  with;  but  oth- 
erwise, the  will  should  be  signed  by 
him,  or  by  some  one  in  his  presence, 
and  by  his  express  direction;  and  in 
all  cases  two  or  more  competent  wit- 
nesses (though  not  subscribing  ones) 
should  establish  its  authenticity.  5 
Whart.  386;  Showers  v.  Showers,  27 
Penn.  St.  485,  67  Am.  Dec.  487.  See 
Wall  V.  Wall,  123  Penn.  St.  545,  16 
A.  598,  where  the  testator  died  be- 
fore his  intended  will  was  finished;  75 
Penn.  St.  503. 

As  to  the  Maryland  code,  with  re- 


spect to  a  will  of  chattels,  see  Byers 
V.   Hoppe,   61   Md.   206. 

In  Tennessee,  entries  made  in  one's 
diary,  which  purport  to  dispose  of 
the  writer's  property  after  his  death, 
may  constitute  a  holographic  will. 
Reagan  v.  Stanley,  11  Lea,  316.  Even 
although  neither  signed  nor  attested, 
these  entries  may  be  set  up  as  a  will 
of  personalty,  on  sufficient  proof  of 
the  handwriting.  lb.  And  see  100 
Tenn.  193,  43  S.  W.  768.  A  holo- 
graph is  not  deprived  of  that  peculiar 
character  by  the  fact  that  there  are 
witnesses  to  it.  Roth's  Succession, 
31  La.  Ann.  315.  And  see  for  the 
case  of  a  holograph  will  established 
where  an  ineffectual  attempt  was 
made  to  formally  execute  a  clean 
copy  of  it,  Wilbourn  v.  Shell,  59 
Miss.  205,  42  Am.  Rep.  360.  See 
§  312,  post. 

In  Virginia,  a  holograph  will,  with 
the  testator's  name  at  the  commence- 
ment but  not  subscribed,  with  a  blank 
left  for  the  date,  and  containing  an 
attestation  clause  but  no  witness,  is 
held  to  be  not  well  executed.  Waller 
V.  W^aller,  1  Gratt.  454,  42  Am.  Dec. 
564.  See  Warwick  v.  Warwick,  86 
Va.  596,  10  S.  E.  843;  Perkins  v. 
Jones,    84    Va.    358.      But    in   North 


317 


257 


LAW  OF  WILLS. 


[part    ITT. 


The  dictation  of  a  will  while  in  extremis  stands,  moreover  under 
some  local  codes,  upon  an  exceptional  footing  of  f avor.^ 


§  257.  A  Will  not  properly  executed  and  attested,  is  Inoperative 
under  Modern  Statutes. 
Under  modem  statu-tes  which  require  a  will  to  be  duly  exe^ 
cuted  and  attested  by  a  certain  number  of  subscribing  witnesses, 
in  order  to  give  it  effect,  there  can  be  no  judicial  evasion  in  favor 
of  informal  writings.  Hence,  if  an  instrument  is  in  its  true  char- 
acter testamentary,  but  has  not  been  properly  attested,  the  fact 
that  the  maker  never  revoked  or  repudiated  it  during  his  life, 
gives  it  no  validity  for  a  probate.^  Nor  can  the  paper  thus  in- 
tended to  operate  as  a  will  be  turned  into  a  declaration  of  trust, 
so  as  to  defeat  the  statute  which  prescribes  how  such  wills  shall 


Carolina  an  instrument  with  the  re- 
quisite number  of  witnesses,  one  of 
whom  is  decided  to  be  incompetent, 
may  be  proved,  nevertheless,  as  a 
holograph  will.  Brown  v.  Beaver,  3 
Jones,  516.  In  Kentucky  a  will 
which  is  wholly  written  out  and 
signed  by  the  testator  requires  no 
attestation.  Toebbe  v.  Williams,  80 
Ky.  G61.  But  an  unattested  codicil, 
written  and  subscribed  by  the  tes- 
tator, and  hence  executed  as  the 
statute  requires,  cannot  bring  into 
operation  an  unattested  will  not 
wholly  written  by  the  testator.  S3 
Ky.  584.  And  see  80  Va.  293 ;  Camp's 
Estate,  66  P.  227,  134  Cai.  233;  Fay's 
Estate,  145  Cal.  82,  78  P.  649,  104 
Am.  St.  Rep.  17  (as  to  d;ite)  ; 
Soher's  Estate,  78  Cal.  477  (one  wit- 
ness). 

In  Skerrett's  Estate,  67  Cal.  585, 
8  P.  181,  a  letter  addressed  to  a  sis- 
ter, with  a  copy  of  deed  of  gift — 
uii    in    the   brother's    hand — was   pro- 


bated as  a  holographic  will.  But  cf. 
an  ineffective  writing  in  50  La.  Ann. 
617,  23  So.  73.  And  see  36  So.  1039, 
84  Miss.  157;  Dougherty  v.  Hol- 
scheider,  88  S.  W.  1113   (Tex.  1905). 

8.  See  Pennsylvania  rule  as  stated 
in  preceding  note;  also  Godden  v. 
Burke,   35  La.  Ann.   160. 

To  constitute  a  good  will  of  person- 
alty, by  the  Maryland  rule,  the  paper 
must  either  be  complete  on  its  face, 
or  if  incomplete  and  defective,  it 
must  appear  that  the  testator  intend- 
ed it  to  operate  as  his  will  in  its  un- 
finished or  incomplete  state,  or  that 
he  was  prevented  from  completing  it 
by  sickness,  death,  or  some  other 
casualty.  Plater  v.  Groome,  3  Md. 
134. 

9.  Gough  V.  Findon,  7  Ex.  48;  Rob- 
inson V.  Schly,  6  Ga.  575;  Watkins 
V.  Dean,  10  Yerg.  320;  Turner  v. 
Scott,  51  Penn.  St.  126;  McCarty  v. 
Waterman,  84  Md.  550,  57  Am.  St. 
Rep.  415,  36  A.  592,  and  cases  cited. 


318 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILIi.  §    258 

be  executed.^  iln  short,  that  which  was  intended  as  a  will  cannot 
legally  take  effect  as  such,  unless  executed  with  such  formalities 
as  public  policy  may  have  seen  fit  to  impose  for  the  better  pro- 
tection of  titles  against  fraud  and  uncertainty.^ 

It  is  insufficient,  moreover,  tthat  a  will  complies  with  the  statute 
formalities  in  force  at  the  time  of  the  testator's  death ;  for  require- 
ments in  force  when  the  paper  was  executed  afford  the  criterion  of 
validity.^ 

§  258.  Requirement  of  Writing,  how  satisfied;  Materials  to  be 
used. 

The  old  Statute  of  Frauds,  and  the  modern  codes  generally^ 
require  the  will  to  be  in  writing;  and  no  compliance  can  be  so 
natural  and  proper  as  the  usual  one,  namely,  the  use  of  pen,  ink, 
and  paper.  But  if  written  in  a  printed  or  engraved  blank,  a  will, 
like  a  deed,  well  satisfies  the  statute ;  ^  and  so,  too,  even  though 
the  entire  will  were  printed,  lithographed,  or  engraved  (a  practice 
certainly  not  so  common,  since  every  will  must  have  its  individual 
traits,  and  multiplied  copies  are  useless),  or  prepared  by  the 
typewriter,  hectograph,  or  any  similar  process.^ 

1.  Long's  Appeal,  86  Peiin.  St.  196.      the  New  York  real  estate.     Vogel  v. 

2.  Equity  courts  cannot  supply  tlie  Lehritter,  139  N.  Y.  223,  34  N.  E. 
defective   execution   of    a   will.      Rob-      914;  post  §  491. 

son  V.  Jones,  3  Del.  Cli.  51.  3.  Packer  v.  Packer,  179  Penn.  St. 
Civil  law  formalities  difier  from  580,  57  Am.  St.  Rep.  516,  36  A.  344; 
those  usual  in  England  and  America.  §  11  supra;  62  N.  Y.  S.  785;  Amb.  550, 
Where  a  woman,  a  citizen  of  New  3  Atk.  551.  And  see  76  Mo.  543. 
Y'ork  State,  where  she  owned  real  es-  4.  1  Redf.  Wills,  165 ;  Henshaw  v. 
tate,  was  domiciled  in  Germany,  and  Foster,  9  Pick.  312;  Temple  v.  Mei'.d, 
before  her  death  there  procured  a  4  Vt.  536;  Adams's  Goods,  L.  R.  2  P. 
local  notary  to  draw  up  her  will,  &  D.  367;  Bench  v.  Bench,  2  P.  B. 
signed  the  paper  in  his  presence  60;  L.  R.  3  P.  B.  159;  77  Ohio  St. 
alone  and  sealed  it  up  in  an  envelope,  704,  17  L.  R.  A.  (N.  S.)  353,  82 
after  which  certain  formalities  were  N.  E.  1067  (statute), 
pursued  with  witnesses  for  identify-  5.  lb.  It  is  a  rule  of  long  stand- 
ing the  paper,  but  insufficient  for  re-  ing,  that  where  a  statute  requires 
publication,  this  was  held  inoperative  writing,  it  is  satisfied  by  printing. 
as  a  duly  executed  will  for  devising  Schneider  v.  Norris,  2  M.  &  S.  286. 

319 


§    258  LAW  OF  WILLS.  [pAET    III. 

It  is  here  to  be  observed  that  the  policy  of  the  law  seeks  ma- 
terials and  a  mode  of  writing  which  shall  sufficiently  avoid  the 
danger  of  fraudulent  change  or  obliteration,  and  constitute  for 
probate  and  public  registry  an  instrimient  which  shall  express 
plainly  and  permanently  on  its  face  the  testator's  final  language 
as  to  his  disposition.  As  between  ink  and  pencil,  the  former,  or, 
at  least,  that  substance  whose  marks  cannot  be  erased  without 
leaving  a  sure  sign,  is  decidedly  preferable;  yet  it  is  generally 
held  that  a  will  written  or  altered  in  lead-pencil  instead  of  ink 
would  be  good.^  Doubtless,  there  are  extreme  cases  where  one 
has  not  in  his  haste  the  choice  of  materials ;  and  if  such  extremi'ty 
be  shown,  and  the  will  proved  a  genuine  one,  signed  and  witnessed 
after  the  regular  form,  a  court  should  not  strain  at  fine  objections. 

But  while  one  may  write  his  will  upon  any  material  and  in  any 
mode,  when  forced  to  do  so,  a  risk  is  incurred  where  the  selecition 
of  materials,  deliberately  made,  is  an  impindent  one  and  obnox- 
ious to  the  legislative  policy.  Thus,  it  is  held  in  Pennsylvania 
that  anything  so  easily  rubbed  out  or  altered  as  a  writing  on  a 
slate,  contravenes  the  policy  of  the  law  and  cannot  be  admitted 
as  a  will,  though  intended  by  the  decedent  as  her  last  will  and  tes- 
tament.^ So,  too,  the  use  of  a  pencil  or  other  materials  undesir- 
able for  such  solemn  acts,  may  bear  significantly  upon  the  ques- 
tion, whether  the  act  was  performed  with  a  full  and  final  testa- 
mentary intent  or  only  as  something  incomplete  and  preliminary. 
One  may  make  erasures  and  alterations  with  a  lead-pencil  on  a 
will  prepared  in  ink,  and  the  instrument  so  corrected  may  pass  to 
probate ;  ^  but  changes  of  this  sort  are  never  presumed  to  be  de- 

6.  Dypr,   lie,   1   Hagnr.   Eccl.   219,    1  Am.  St.  Rep.  798,  6  L.  R.  A.  353,  IS 

Add.    406;     1     Redf.     Wills,     165;     1  A.    1021. 

Wms.  Exrs.  Ill;  Dickenson  v.  Dick-  7.  Reed  v.  Woodward,  11  Pliila. 
enson,  2  Phillim.  173;  Mence  v.  541.  But  wliother  a  slate  and  pencil 
Monce,  18  Ves.  348;  Bateman  v.  Pen-  niif?lit  not  be  used  in  an  extreme  case 
iiington,  3  Moore  P.  C.  223;  Myers  v.  (such  as  of  course  seldom  occurs), 
Viinderboit,  84  Pcnn.  St.  510.  24  Am.  there  bein<r  no  other  writing  mater- 
Rep.  227;  Harris  v.  Piie.  39  Md.  535;  ials  available,  quaere. 
Knox's  Estate,  131  Pcnn.  St.  220,  17  8.  See  Fuguct's  Will,  11  Phila.  75; 

1   Wms.   Exrs.   111. 

320 


ClIAJ?,    1,]  WHAT  CONSTITUTES  A  WILL.  §    259 

liberate  and  intended  for  a  bona  fide  final  correction,  but  rather 
the  reverse ;  and  in  English  probate  practice  the  rule  has  long  been 
established,  to  treat  alterations  made  in  lead-pencil  as  prima  facie 
deliberative  only,  but  alterations  in  ink  as  final  and  absolute.* 


§  259.  Language,    Native    or   Foriegn,    in   which    a    Testament 
should  be  expressed. 

A  testament  may  be  written  out  in  any  language,  provided  the 
testator  himself  understands  essentially  what  the  will  contains.^ 
But  with  witnesses  it  seerois  proper,  as  with  the  testator  himself, 
to  consider  what  knowledge  enables  the  particular  duty  to  be  in- 
telligently performed.  A  testator,  even  ttbough  ignorant  of  the 
language  in  which  the  will  is  expressed,  should  feel  assured  that 
the  language  used  expresses  his  intention  rightly ;  and  where  doubt 
is  entertained  on  this  point,  the  correctness  and  bona  fides  of  ithe 
translation  should  be  satisfactorily  established  in  probate.  As  for 
witnesses,  however,  a  knowledge  of  what  the  will  contains  is  by 
no  means  indispensable  in  modem  practice;  but  such  persons 
should  at  leas/t  know  the  nature  of  the  act  they  are  performing, 

9.  1  Eedf.  Wills,  166;  1  Hagg.  Ecc.  expressions   which   correspond.      Rey- 

322,   490;    1  Add.   406;    Dickenson   v.  nolds  v.  Kortright,  18  Beav.   417. 

Dickenson,  2  Pliillim.  173,  L.  R.  2  P.  A    will    may    be    refused    probate, 

&  D.  256.     Where  a  printed  form  is  where  it  appears  in  evidence  that  the 

filled  up  partly  in  ink  and  partly  in  alleged   testator   could  not  write  nor 

pencil,  and  the  writing  in  ink  makes  understand   the  English   language,   in 

sense    with    the    form    without    help  which     the     paper     propounded     was 

from  the  writing   in   pencil,   the   ink  written,  and  that  nothing  was  said  or 

form  is  to  be  considered  the  true  and  done  indicating  that  he  knew  he  was 

final  one.     Adams's  Goods,  L.  R.  2  P.  making  a  will.     Miltenberger  v.  Mil- 

&  D.  367.     See  33  Pa.  Super.  570.  tenberger,    78    Mo.    27.      But    a    will 

1.  1    Wms.    Exrs.    110;    Swinb.    pt.  dra;wn   in  accordance  with   the  testa- 

4,  §  25,  pi.  3;  Green  v.  Skipworth,  1  tor's   instructions,  and  duly  executed 

Phillim.   58;    Walter's   Will,   64   Wis.  with    knowledge    of    its    contents    is 

487,  25  N.  W.  538,  54  Am.  Rep.  640.  valid  although  written  in  English,  a 

If  the  testator  be   a  domiciled   Eng-  language  which  the  testator    (here   a 

lishman,    the    effect    of    the    foreign  German)    did  not  understand.      Wal- 

torgue  employed   can   only  be   looked  ter's  Will,  supra;  107  N.  W.  21,  128 

at  in  order  to  ascertain  the  English  Wis.  112  (duly  translated  to  testator). 

21  321 


§    262  LAW  OF  WILLS.  [pAET    III» 

and  sign  no  attestation  clause,  at  all  events,  whose  meaning  is  not 
clear  to  liieir  minds.^ 

§  260.  A  Will  should  be  legibly  written. 

A  will  should  he  legibly  written,  in  order  to  operate.  But  the 
aid  of  experts  and  those  familiar  with  one's  blind  handwriting  may 
be  invoked  for  the  purpose  of  making  clear  what  the  will  con- 
tains.^ For  interpreting  a  cipher,  too,  or  words  in  an  unknown 
tongue,  a  corresponding  rule  is  useful.* 

§  261.  A  Will  need  not  be  dated,  etc. 

As  with  formal  attestation  clauses,  so  with  descriptions  of  the 
date  or  place  of  execution ;  they  are  not  material  in  any  will  unless 
the  local  statute  expressly  makes  it  so.  Such  formalities  are  cer- 
tainly useful;  but  wills  have  been  sustained  as  valid,  though 
having  no  date  or  even  a  wrong  one  inserted.^  With  reference  to 
its  effect  or  even  to  its  legality,  the  date  may  be  of  much  conse- 
quence ;  but  this  may  be  established  or  corrected  by  parol  evidence 
showing  the  real  date  of  its  execution,®  The  actual  date,  when  ex- 
pressed in  a  will  or  its  attestation  is  prima  facie  evidence  of  the 
date  of  its  execution  and  no  moreJ 

§  262.  Formal    Words    like    "  Will,"    "  Testament,"    "  Devise," 
"  Bequest,"  are  not  Essential. 
A  will  may  be  valid  and  operative  as  such  (apart  from  legisla- 
tion)  withoul;  such  formal  words  as  ''  will,"  "  testament,"  "  de- 
vise," or  "  bequest."     Thus  where  a  will  began,  "  The  request  of 

2.  Adams  v.  Norris,  23  How.  366;  trinsic  evidence  to  explain  ambigui- 
Breaux   v.   Gullusseaux,   14   La.   Ann.       ties,  etc. 

233,  74  Am.  Dec.  430.  5.  Wright   v.    Wright,    5    Ind.    389; 

3.  In    Masters    v.    Masters,     1     P.  Deakins  v.  Hollis,  7  Gill  &  J.  311;  79 
Wms.   421,   reference  was  made   to   a  Ky.    607;    40    Ark.    144.      Cf.    §    255. 
master    in    chancery   to   find   out,   by  supra,  as  to  holograph  wills  and  the 
taking  testimony,  the  meaning  of  il-  local  codes  which  favor  them, 
legible  words  and  figures  in  the  will.  6.  lb. 

4.  See  Part  VI.  c.  3,  post,  as  to  ex-  7.  Kohn's   Estate,    137   N.    W.   735,. 

172  Mich.   343. 

322 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    2G3 

C.  I  want  R.  to  have  my  place  as  long  as  lie  shall  live,"  etc.,  it 
was  held  a  valid  one.^  So  where  one  draws  a  paper  by  way  of 
conveying,  assigning,  transferring  and  setting  over  his  property  to 
have  the  same  after  his  deatJi.^  And  though  a  duly  executed  paper 
should  say  "  I  have  given  "  instead  of  "  I  give,"  it  may  be  shown 
that  the  intention  was  future  and  posthumous,  so  as  to  render  it 
testamentary/ 

§  263.  A  "  Will  "  is  Something  Imperative,  though  Softer  Words 
are  employed. 

But  a  "  will  "  is  something  imperative  even  though  the  testator 
should  choose  to  employ  some  softer  word  to  denote  it.  Doubtless 
his  true  intention,  as  the  context  may  indicate,  will  operate  in  the 
details  of  the  disposition;  as  in  determining  whether  a  party 
named  in  the  will  shall  absolutely  or  at  his  own  discretion  per- 
form a  certain  duty  or  appropriate  a  certain  fund.^  But,  gener- 
ally speaking,  where  property  is  given  by  testament  to  some  per- 
son, who  is  recommended,  requested,  or  wished,  to  dispose  of  it 
after  a  certain  manner,  this  wish,  request,  or  recommendation  is 
commonly  considered  imperative  and  equivalent  to  creating  a 
trusit.^  And  as  for  the  will,  the  testamentary  disposition  itself, 
its  natural  operation  is  absolute  and  imperative,  though  never  so 
gently  expressed ;  ■*  for  such  an  instrument  as  a  will  whose  sanction 

8.  Camp  V.  Stark,  10  Phila.  528.  Ch.  490;  Knight  v.  Broughton.  11  CI. 
And  see  Miars  v.  Bedgood,  9  Leigh,  &  F.  513.  And  see  post,  §  595,  as  to 
361;  Wood,  Re,  36  Cal.  75;  Mundy's  precatory  trusts  in  the  construction 
Goods,  2  S.  &  T.  119.  of  wills. 

9.  Robinson  v.  Brewster,  140  111.  4.  McRee  v.  Means,  34  Ala.  364.  A 
649,  33  Am.  St.  Rep.  265,  30  N.  E.  paper  expressing  a  wish  to  give  cer- 
683.  tain    sums,    and    that   neither    execu- 

1.  Coles's  Goods,  L.  R.  2  P.  &  D.  tors  nor  heirs  will  object  to  carrying 
362.  And  see  Oldroyd  v.  Harvey,  P.  out  this  will,  is  imperative.  Carle 
(1907)    326.  V.  Underbill,   3   Bradf.   Sur.    (N.  Y.) 

2.  Wells  V.  Doane,  3  Gray,  201,  and  101.  And  see  Knox's  Estate,  131 
cases  cited;  Wynne  v.  Hawkins,  1  Penn.  St.  220,  17  Am.  St.  Rep.  798, 
Bro.  C.  C.  179.  6  L.  R.  A.  353,  18  A.  1021;   Easton's 

3.  1  Wms.  Exrs.  108,  and  cases  Estate,  188  Penn.  St.  374,  68  Am.  St. 
cited;   Passmore  v.  Passmore,  1  Phil-  Rep.  374,  41  A.   529. 

lim.    218;    Brunson    v.    King,    1    Hill 

323 


§    264  LAW  OF   WILLS.  [PAET    III. 

rests  upon  the  arbitrary  discretion  of  a  court  or  surviving  indi- 
vidual, whicli  prays  instead  of  declaring  a  devolution  of  title,  is 
almost  unheard  of,  and  never  to  be  favored  by  construction,^ 

§  264.  The  General  Form  of  Testamentary  Instruments;  Effect 
of  Legislation. 

So  much  for  primary  requisites,  and  the  materials  with  which 
wills  are  written.  Isow  to  discuss  more  generally  the  form  of 
testamentary  instruments.  In  jurisdictions  which  insist  that 
wills  shall  be  not  only  signed  but  aittested  by  two  or  perhaps  three 
witnesses,  and  in  those,  most  of  all,  where  a  formal  clause  of  attes- 
tation cannot  be  dispensed  with,  any  uncertainty  as  to  what 
writings  shall  or  shall  not  be  pronounced  testamentary  ranges 
within  a  narrow  compass.  But  while  our  law  permitted  any 
writing  of  a  testamentary  sort  to  rank  as  a  will  of  personalty 
without  any  attestation,  without  even  the  testator's  signature  sub- 
scribed to  it,  it  must  often  have  been  a  vexed  problem  to  deter- 
mine whether  a  certain  writing  found  among  one's  papers  after  his 
death  was  or  was  not  to  all  intents  a  will  and  an  efficacious  dis- 
position of  his  property. 

Even  at  this  day,  under  the  numerous  statutes  which  prescribe 
attestation  but  no  formal  clause  of  attesitation,  such  questions  some- 
times occur.  Thus,  in  England  or  America,  a  paper  amounting 
to  little  more  than  a  mere  draft  upon  a  certain  savings  bank  in 
favor  of  A.  B.,  or  some  simple  order  contained  in  a  single  sentence, 
may,  if  simply  witnessed  at  the  side  of  the  drawer's  signature  by 
two  persons  or  three  (as  the  local  statute  prescribes)  constitute  a 
will.®  A  will  need  name  no  executor;  it  may  avoid  using  such 
w^ords  as  "  last  will  and  testament " ;  it  may  take  effect  as  a  par- 
tial, rather  than  a  total  disposition  of  property;  there  are  no  words 
or  phrases  essential  to  the  devolution  of  title  under  such  an  in- 
strument.^ 

5.  P.iit  soc  Smith's  Goods,  L.  R.  1  Tooko,  L.  R.  1  P.  &  D.  241;  L.  R.  2 
P.  &  D.  717,  under  §  293,  po.tt.  P.  &  D.  362. 

6.  Si-o     104     M;ias.     426;     Cock     v.  7.  Byers  v.  Iloppe,  61  Md.  206,  48 

324 


CHAP.    I.] 


WHAT  CONSTITUTES  A  WILL. 


265 


§  265.  No  Testamentary  Form  Requisite,  if  there  be  the  Testa- 
mentary Intent. 

The  fundamental  maxim  is,  that  no  particular  form  of  written 
testament  can  be  insisted  upon,  provided  the  maker  of  the  inetru- 
nient  intended  it  to  operate  only  at  or  after  his  death,  and  the 
instrument  be  executed  with  such  formaliities  as  local  legislation 
may  have  imposed.  Testamentary  intention,  in  other  words,  or 
rather  an  intention  whose  effect  is  to  create  a  tes'tament,  entitles  the 
instrument  to  probate^,  however  inartificial  its  form,  subject  only 
to  such  restraints  as  legislation  may  have  seen  fit  to  impose,  for 
the  better  prevention  of  fraud  and  perjury.^ 

Until  within  the  last  seventy  years  this  doctrine  has  applied 
chiefly  in  favor  of  wills  of  personalty ;  to  wills  proper,  subject  to 
ecclesiastical  direction,  as  contrasted  with  devises  of  land.  And  in 
much  earlier  times  greater  strictness  prevailed  in  England  than 
during  the  half  century  immediately  preceding  the  enactment  of 
1  Vict.  c.  26  (1837).* 


Am.  Rep.  89,  55  A.  963,  206  Penn. 
260;  Arendt  v.  Arendt,  96  S.  W.  982, 
80  Ark.  204. 

"  There  is  nothing  that  requires  so 
little  solemnity  as  the  making  of  a 
will  of  personal  estate,  according  to 
the  ecclesiastical  laws  of  this  realm; 
for  there  is  scarcely  any  paper  writ- 
ing they  will  not  admit  as  such." 
Lord  Hardwicke,  in  Ross  v.  Ewer,  3 
Atk.  163.  But  since  the  Statute  1 
Vict.  c.  26  took  effect,  there  is  far 
less  force  in  such  a  statement,  as  the 
text  above  suggests. 

8.  Masterman  v.  Maberly,  2  Hagg. 
248;  Habergham  v.  Vincent,  2  Ves. 
Jr.  231;  1  Wms.  Exrs.  104;  Leathers 
V.  Greenacre,  53  Me.  561;  Brown  v. 
Shand,  1  McCord,  409;  Mealing  v. 
Pace,  14  Ga.  596;  High's  Case,  2 
Dougl.  (Mich.)  515;  92  Wis.  209,  65 
N.  W.  1037.     And  see  cases  below. 


9.  1  Wms.  Exrs.  104. 

There  are  numerous  English  deci- 
sions prior  to  1838,  chiefly  those  of 
the  ecclestiastical  courts,  where  var- 
ious kinds  of  instruments  were  sus- 
tained, as  under  the  circumstances 
testamentary.  As,  for  instance,  a 
deed  of  gift.  Thorold  v.  Tliorold,  1 
Phillim.  1,  2  Ves.  Sen.  440;  Attorney- 
General  V.  Jones,  3  Price,  368.  Or  a 
deed,  whether  executed  by  way  of 
deed-poll  or  indenture.  Habergham 
V.  Vincent,  2  Ves.  Jr.  231;  Shingler 
V.  Pemberton,  4  Hagg.  356.  Or  a 
marriage  settlement.  Passmore  v. 
Passmore,  1  Phillim.  218,  2  Hagg. 
554;  3  Hagg.  415;  Thompson  v. 
Browne,  3  My.  &  K.  32.  Or  general 
instruments  expressed  after  the  form 
of  articles  of  agreement.  1  Mod.  117, 
1  Jarm.  Wills,  18-23.  But  see  8  Ir. 
Eq.   567;    Robinson's   Goods,   L.   R.   1 

325 


§  266 


LAW  OF  WILLS. 


[PAKT    IIL. 


§  266.  The  Same  Subject. 

The  effect  of  sucli  an  informal  instrument  being  to  give  a 
posthumous  destination  to  the  maker's  property,  any  contrary  title 
or  designation  which  he  may  have  given  does  not  prevent  the  court 
from  treating  ii  as  a  will.^  As  where  words  of  immediate  grant 
are  expressed  in  the  document  and  yet,  on  the  whole,  the  inten- 


P.  &  D.  3S5.  Or  a  bond.  Masterman 
V.  Maberly,  2  Hagg.  235.  Or  a  letter. 
Passmore  v.  Passmore,  1  Phillim. 
218,  2  S.  &  T.  119,  375;  1  Hugg.  130, 
488;  Denny  v.  Barton,  2  Phillim.  575. 
Or  a  promissory  note.  2  Hagg.  247. 
Or  a  draft  on  a  bank.  Bartholomew 
V.  Henley,  3  Phillim.  317,  2  Curt. 
650.  Or  the  assignment  of  a  bond 
or  indorsement  of  a  note  to  some 
party.  2  Hagg.  247;  Chaworth  v. 
Beech.  4  Ves.  565.  Or  a  memoran- 
dum of  testamentary  intention. 
Tapley  v.  Kent,  1  Robert.  400. 

Many  American  decisions,  especial- 
ly those  not  of  recent  date,  are  to  the 
same  effect.  Thus,  instruments 
which  are  in  form  a  deed  of  gift,  and 
so  called,  have  been  admitted  to  pro- 
bate, out  of  regard  to  the  giver's  tes- 
tamentary purpose.  Dunn  v.  Bank 
of  Mobile,  2  Ala.  152;  Mosser  v. 
Mosser,  32  Ala.  551;  Carey  v.  Den- 
nis, 13  Md.  1;  Symmes  v.  Arnold,  10 
Ga.  506;  Johnson  v.  Yancey,  20  Geo. 
707,  65  Am.  Dec.  643;  Allison  v.  Al- 
lison, 4  Hawks.  141;  Ragsdule  v. 
Brooker,  2  Strobh.  Eq.  348;  Millican 
V.  Millican,  24  Tex.  426.  So  it  is 
with  a  deed.  Dudley  v.  Malkry,  4 
Geo.  552;  Evans  v.  Smith,  28  Geo.  98, 
73  Am.  Dec.  751;  Gage  v.  Gage,  12 
N.  H.  371;  Frederick'.s  Appeal,  52 
Penn.  St.  338;  Ingram  v.  Porter,  4 
McCord,  198;  Watkina  v.  Dean,  10 
Yerg.  321,  81  Am.  Dec.  583.     Or  let- 

326 


ters.  Morrell  v.  Dickey,  1  Johns. 
Ch.  153,-  Leathers  v.  Greenacre,  53 
Me.  561;  1  Gill  &  J.  25,  19  Am.  Dec. 
213;  Byers  v.  Hoppe,  61  Md.  206,  48 
Am.  Rep.  89;  Cowley  v.  Knapp,  42  N. 
J.  L.  297.  But  as  to  a  marriage  set- 
tlement, see  Michael  v.  Barker.  12 
Md.  158,  71  Am.  Dec.  593,  where  pro- 
bate was  refused.  Deeds  intended  to 
operate  as  such,  are  not  allowed  to 
operate  as  wills.  Edwards  v.  Smith, 
38  Miss.  197;  Rice  (S.  C.)  Ch.  243; 
Baltimore  v.  Williams,  6  Md.  235; 
Cumming  v.  Cumming,  3  Ga.  460;  5 
Munf.  42;  Boling  v.  Boling,  22  Ala. 
826;  Skerrett's  Estate,  67  Cal.  585, 
8  P.  181.  Nor  is  a  bond  of  no  tes- 
tamentary purport.  Shields  v.  Mif- 
flin, 3  Yeates,  389.  Nor  a  paper  of 
preliminary  instructions.  Hocker  v. 
Hocker,  4  Gratt.  277;  Plater  v. 
Groome,  3  Md.  134.  And  various  in- 
formal writings,  letters,  or  memo- 
randa, have  been  ruled  out  from  pro- 
bate, as  not  constituting  wills. 
Todd's  Will,  2  W.  &  S.  145;  Wagner 
V.  M'Donald,  2  Harr.  &  J.  346.  As 
for  notes,  orders,  indorsements,  etc., 
see  Hunt  v.  Hunt,  4  N.  H.  434,  17 
Am.  Dec.  438,  6  Dana,  30;  Plum- 
stead's  Appeal,  4  S.  &  R.  545.  And 
see    §§    267-270. 

1.  1  Jarm.  Wills,  18;  Rohrer  v. 
Stehman.  1  Watts,  442;  Leathers  v. 
Greenacre,  53  Me.  561. 


CHAP.    I.] 


WHAT   CONSTITUTES  A   WILL. 


26G 


tion  was  tliat  of  a  future  operaition  upon  tlie  signer's  deatli.^  And, 
'dispensing  as  it  might  with  execution  and  a  formal  attestation  in 
wills  of  chattels,  our  former  probate  law  was  led  often  to  treat- 
ing as  a  testament  what  was  quite  as  likely  from  its  face  to  be 
nothing  more  than  a  memorandum  of  instructions  for  drawing 
one's  will,  or  some  other  preliminary  writing  which  embodied 
plans  by  no  means  matured  at  the  disposer's  death ;  thus  confirm- 
ing in  no  slight  degree  by  laxity  of  construction  that  very  uncer- 
tainty which  ihe  Statute  of  Frauds  sought  to  remove  from  de- 
vises.^ 


2.  Habergham  v.  Vincent,  2  Ves. 
Jr.  204;  Walker  v.  Jones,  23  Ala. 
448;  Carey  v.  Dennis,  13  Md.  1; 
Stevenson  v.  Huddleson,  13  B.  Mon. 
299;  Babb  v.  Harrison,  9  Rich.  Eq. 
Ill,  70  Am.  Dec.  203. 

3.  See  1  Redf.  Wills,  168,  and 
notes;  1  Jarm.  Wills,  101-104,  notes. 
The  presumption  of  the  ecclestiastical 
courts  has  been  against  a  paper 
whose  face  indicates  that  it  was  un- 
finished ;  but  whenever  the  character 
of  such  a  paper  is  equivocal,  parol 
evidence  might  be  introduced  to  show 
whether  it  was  intended  as  a  mere 
memorandum  or  a  will.  1  Jarm. 
Wills,  104;  1  Hagg.  75,  661;  Gillow 
V.  Bourne,  4  Hagg.  192;  Castle  v. 
Torre,  2  Moore  P.  C.  154.  But  it 
could  be  shown  that  the  deceased  in- 
tended the  paper  in  its  actual  con- 
dition to  operate  as  his  will,  or  that 
he  was  prevented  by  involuntary  ac- 
cident from  completing  it.  1  Jarm. 
104.  Papers  were  frequently  refused 
probate  where  the  testator  had  full 
opportunity  to  sign  and  did  not,  or 
attached  an  attestation  clause,  which 
might  have  been,  but  was  not,  sub- 
scribed by  witnesses:  this,  however, 
simply  by  for:e  of  a  presumption  that 


the  incompletion  in  fact  signified  in- 
complete intention;  for  the  writing, 
even  as  it  stood,  was  adequate  as  a 
will  in  writing  to  satisfy  the  re- 
quirements of  the  old  law.  Slight  as 
the  adverse  presumption  was,  it  had 
to  be  rebutted  by  some  extrinsic  evi- 
dence that  the  testator  meant  it  to 
operate  in  its  subsisting  state,  before 
probate  could  be  granted.  Beaty  v. 
Beaty,  1  Add.  154;  Harris  v.  Bedford, 
2  Phillim.  177,  1  Jarm.  101.  A  dis- 
tinction, however,  favorable  to  pro- 
bate, was  taken  where  the  testator 
had  not  full  opportunity  of  complet- 
ing, but  was  prevented  by  sudden 
death,  insanity,  or  other  involuntary 
cause,  from  performing  the  conclud- 
ing act  of  signature  or  attestation; 
though  obviously  a  sudden  calamity 
like  this  might  rather  have  stopped 
the  decedent  in  the  midst  of  deliber- 
ations and  before  his  testamentary 
purpose  had  fully  worked  out.  Mon- 
tefiore  v.  Montefiore,  2  Add.  354.  1 
Jarm.  104.  As  between  presump- 
tions and  oral  proof,  informal  papers 
intended  as  wills,  and  inchoate  or  un- 
finished papers,  it  may  be  imagined 
through  what  a  flood  of  uncertain 
litigation    the    English    courts    wan- 


327 


§  267 


LAW  OF  WILLS. 


[part    III. 


§  267.  Whether  an  Instrument  is  Testamentary  or  not,  where 
Statutes  require  an  Attestation,  etc. 

Under  our  modem  statutes,  which  so  largely  embodj  in  a  State 
the  policy  of  the  famous  English  Wills  Act  of  1837,*  much  of  this 
former  uncertainty  a^  to  wills,  informal  and  inchoate,  is  otoviated. 
Within  the  narrow  sphere  still  assigned  to  nuncupative  wills,  parol 
evidence  to  authenticate  writings,  or  to  establish  wills  without  any 
writing,  of  course  avails.^  And  we  are  further  tO'  remember  that 
in  a  few  of  the  United  States  a  formal  attestation  by  witnesses  is 
not  made  indispensable  to  probate;  ^  while  in  various  parts  of  this 
country  holograph  wills  appear  to  have  found  a  permanent  lodg- 
ment ;  ''  no't,  however,  in  every  instance,  without  more  wholesome 


<iered  until  the  statute  of  1  Vict,  c  26 
introduced  a  stricter  necessity  for 
formal    execution. 

There  are  numerous  American  deci- 
sions where  wills  of  chattels  have 
been  admitted  to  probate  upon  simi- 
lar grounds;  no  statute  requirement 
being  at  the  time  transgressed.  Thus 
in  Watts  v.  Public  Administrator,  4 
Wend.  168;  s.  c,  1  Paige,  347,  where 
(by  reversal  of  the  chancellor's  de- 
cree) a  testamentary  paper,  found 
among  the  papers  of  the  deceased  in 
an  iron  chest,  property  drawn  up,  as 
it  appeared,  by  the  testator,  and 
with  his  name  at  the  beginning  was 
held  a  valid  will  of  chattels,  though 
not  authenticated  by  the  testator's 
signature  at  the  end,  nor  by  the 
names  of  witnesses  at  the  blank  at- 
testation clause,  nor  by  any  other 
very  clear  proof  that  the  deceased 
had  intended  it  as  the  expression  of 
his  full  and  final  testamentary  pur- 
poses. CM;her  early  American  cases 
are  to  the  same  general  effect:  name- 
ly, that  papers  may  be  admitted  to 
probate,  with  the  force  of  wills  of 
chattels,    on    proof    of    extrinsic    cir- 


cumstances to  show  the  animus  tes- 
tandi,  notwithstanding  incomplete- 
ness on  the  face  of  such  an  instru- 
ment, and  the  utter  omission  of  sig- 
natures either  by  attesting  witnesses 
or  the  alleged  testator  himself;  and 
the  English  presumptions  are  applied 
to  such  cases.  Witherspoon  v.  With- 
erspoon,  2  MeCord,  520;  Hocker  v. 
Hocker,  4  Graft.  277;  Robeson  v.  Kea, 
4  Dev.  L.  301.  And  see  §  255,  supra, 
as  to  holograph  wills.  A  written  will 
thus  incomplete,  from  other  causes 
than  a  purpose  to  abandon  or  post- 
pone the  disposition,  is  lately  sus- 
tained as  to  bequests  of  personal 
property,  though  not  as  to  devises  of 
realty,  in  Orgain  v.  Irvine,  100  Tenn. 
193,  43  S.  W.  768.  But  an  adverse 
presumption  arises  against  a  pro- 
bate,    lb. 

4.  Appendix;    supra,    §    252. 

5.  See  c.  4  post,  on  this  subject. 

6.  iiupra,  §  256;  Brown  v.  Avery,. 
58  So.   34. 

7.  Supra,   §    255. 

Under  the  Maryland  code  this  was 
held  a  valid  testament  of  personal 
property,    which    the    decedent    wrote 


328 


CHAP.    I.] 


WHAT  CONSTITUTES  A  WILI.. 


§    267 


precautions  against  error  and  fraud,  than    the    old    ecclesiastical 
courts  of  England  saw  fit  to  insist  upon. 

But  even  in  England,  as  to  wills  executed  since  1837,  and  in 
the  great  majority  of  American  jurisdictions,  where  like  formali- 
ties of  signature  and  attestation  must  now  be  pursued,  doubts  may 
still  arise  whether  a  particular  instrument  ought  or  ought  not  to 
be  probated  as  a  will.  This  is  because  the  law  still  permits  the 
greatest  flexibility  of  form  and  expression  in  documents  whose 
aim  is  a  posthumous  disposition  of  property ;  and,  while  requiring 
a  certain  number  of  subscribing  witnesses,  moreover,  leaves  the 
form  of  attestation  itself  quite  at  discretion;  for  should  some 
local  staitute  make  it  imperative  for  witnesses  to  sign  an  attesta- 
tion clause  as  such  clauses  are  usually  written  (namely,  that  the 
testator  in  their  presence  signs  and  declares  the  instrument  as  his 
will),  little  controversy  would  remain,  though  doubtless  many  in- 
tended wills  would  fail  of  operation  in  consequence. 


and  signed  on  the  back  of  a  business 
letter  and  addressed  to  A.:  "After 
my  death  you  are  to  have  forty  thou- 
sand dollars;  this  you  are  to  have, 
will  or  no  will;  take  care  of  this  until 
my  death."  Byers  v.  Hoppe,  61  Md. 
206,  48  Am.  Rep.  89,  and  cases  cited. 
And  see  Kelleher  v.  Kernan,  60  Md. 
440.  Cf.  Smith  v.  Smith,  70  S.  E. 
491,  113  Va.  205. 

In  Pennsylvania,  too,  where  sub- 
scribing witnesses  may  be  dispensed 
with,  under  the  peculiar  policy  of  its 
code,  various  informal  papers  are 
sustained  as  testamentary,  by  the 
later  decisions.  Thus,  an  instrument 
after  the  form  of  an  assignment  of  a 
life  insurance  policy,  "  to  my  wife 
M.  after  my  death,  when  she  can  do 
with  it  according  to  her  best  will, 
without  partiality  toward  her  chil- 
dren."    Schad's  Appeal,  88  Penn.  St. 


111.  And  the  indorsement  of  address 
on  a  sealed  envelope  has  been  taken, 
together  with  its  contents,,  cousist- 
ing  of  a  promissory  note  and  an  un- 
addressed  letter,  as  constituting  to- 
gether a  valid  testamentary  disposi- 
tion of  the  note  in  favor  of  the  party 
named  on  the  envelope.  Fosselman 
V.  Elder,  98  Penn.  St.  159.  A  paper 
in  the  form  of  a  power  of  attorney 
may  be  admitted  on  due  proof  as  tes- 
tamentary. Rose  V.  Quick,  30  Penn. 
St.  225.  See  also  Barton's  Estate, 
52  Cal.  537.  So  too,  may  a  mere 
holograph  writing  made  in  lead  pen- 
cil on  the  back  of  a  printed  notice, 
and  found  after  the  death  of  an  il- 
literate person  in  a  bureau  drawer, 
but  dated  two  years  previously  and 
signed  by  her.  Gaston's  Estate,  188 
Penn.  St.  374,  68  Am.  St.  Rep.  41,  A. 
529. 


329 


§    268  LAW  OF   WILLS.  [pART    III. 

§  268.  The  Same  Subject. 

Thus,  to  suppose  a  written  instrument  drawn  up  somewJiat  like 
a  deed  or  solemn  contract ;  or  some  writing  in  the  form  of  a  letter, 
a  draft  on  a  bank,  or  a  memorandum.  It  is  signed  by  the  party 
since  deceased ;  two  or  three  witnesses,  the  full  statute  number, 
have  attested  by  writing  (their  names  at  the  side,  as  is  often  done 
in  a  deed  or  indenture.  Is  tliat  instiiiment  a  will  or  not?  It 
complies  with  the  local  statute  of  wills  in  all  essentials ;  and  yet 
no  layman  who  reads  it  over  could  confidently  pronounce  it  a  will, 
more  (than  a  deed  or  some  other  kind  of  writing  whose  form  it 
follows.  Decisions  that  one  might  suppose  at  variance  pursue  the 
line  of  distinction  appropriate  in  such  cases. 

To  mention  a  few  examples  from  the  later  reports.  In  one 
Georgia  case,  an  instrument,  made  out  in  the  form  of  a  deed,  and 
yet  attested  by  three  witnesses,  made  a  reservation  of  land  to  the 
maker's  use  during  his  life,  and  provided  how  all  his  property 
should  go  at  his  death,  after  his  burial  expenses  and  debts  werei 
paid.  The  maker  of  this  instrument  kept  it  while  he  lived.  This, 
the  court  held,  was  a  will.^  A  few  years  later  the  same  court 
passed  upon  another  instrument,  likewise  drawn  up  like  a  deed, 
which  also  reserved  to  the  maker  the  use  of  the  land  for  life,  and, 
by  the  advice  of  counsel,  was  attested  by  three  witnesses.  In  other 
resj>ects  this  latter  instrument  had  none  of  the  characteristics  of 
a  testament;  it  warranted  the  title  to  the  grantee;  and  the  court 
pronounced  it  no  will  at  all,  but  a  deed  of  gift  under  reservations.' 
Generally  speaking,  an  instrument  in  the  form  of  a  deed  which 
is  executed  with  testamentary  formalities,  and  conveys  all  the 
property  tliat  th<'  maker  "  may  die  possessed  of  "  is  treated  in  that 
State  as  a  will,  and  should  be  duly  presented  for  probate.'^ 

In  other  States,  instruments  made  out  in  the  form  of  a  deed, 
but  well  executed  for  either  deed  or  will,  which  convey  a  specified 

8.  Nifhols  V.  Chandler,  55  Ga.  360.      650,  16  S.  E.  938;   48  S.  E.  129,  120 

9.  Williams  v.  Tolbert,  66  Ga.  127.  Ga.  583;  Sharpe  v.  Mathews,  51  S.  E. 
And    see    66    Ga.    317;    Robinson    v.      706,  123  Ga.  794. 

Schly,  6  Ga.  515.  51  Ga.  239,  90  Ga.  1,  Brewer    v.    Baxter.    41    Ga.    212. 

OOrt 


CHAP.    I.] 


WHAT   CONSTITUTES  A  WILL. 


§    2G8 


traot  of  land,  or,  as  the  case  may  be,  all  of  the  maker's  estate  real 
■and  personal,  ov  his  personalty  only,  have  been  pronounced  wills 
and  not  deeds,  because  of  (the  true  import  of  the  transaction ;  es- 
pecially if  the  instrument  was  retained  by  the  signer  as  tbougli 
revocable,  or  reference  was  made  to  the  instrument  as  a  will,  or 
words  usual  in  testaments  were  employed,  or  ithe  real  intent  to  be 
gathered  was,  that  no  estate  or  interest  in  the  property  should  pass 
imtil  the  maker's  death.^  For  among  those  devoted  to  agriculture 
it  is  not  unusual  to  purpose  a  sort  of  conveyance  of  the  farm  in 
contemplation  of  death,  with  a  proviso  for  the  maker's  support 
duiring  the  rest  of  his  life,  and  a  suspension  of  the  gift  to  make 
that  support  sure.  The  scope  of  such  a  transaction  is  testa- 
mentary, though  tlie  maker  himself  may  not  be  fully  aware  of  it.^ 


2.  Miller  v.  Holt,  68  Mo.  584; 
Armstrong  v.  Armstrong,  4  Baxt. 
357;  Freed  v.  Clarke,  80  Penn.  St. 
171;  Jordan's  Administrator,  65  Ala. 
301;  Daniel  v.  Hill,  52  Ala.  430;  59 
Ala.  349;  Stevenson  v.  Huddleson,  13 
B.  Mon.  299;  Frederick's  Appeal,  52 
Penn.  St.  338,  91  Am.  Dec.  159; 
Lautenschlager,  Re,  80  Mich.  285; 
Wilenou  v.  Handlon,  69  N.  E.  892,  207 
ni.  104;  Gomez  v.  Higgins,  30  So. 
417,  130  Ala.  492;  94  Ala.  295,  10  So. 
258;  Murphy  v.  Gabbert,  66  S.  W. 
536,  166  Mo.  596;  Ellis  v.  Plason,  53 
S.  W.  318,  104  Tenn.  591;  58  S.  W. 
550;  Kelley  v.  Shimer,  152  Ind.  290 
(a  conveyance  in  regular  form  pre- 
sumed to  be  a  deed)  141  N.  W.  228, 
153  Wis.  384,  158  S.  W.  624,  252  Mo. 
58.  See  Kelly  v.  Richardson,  100  Ala. 
584,  13  So.  785  (instrument  as  a 
codicil) . 

A  deed  given  in  escrow  to  be  op- 
erative after  death  is  revocable  by  a 
will  of  the  grantor.  Leonard  v. 
Leonard,  108  N.  W.  985,  145  Mich. 
563.      Cf.    109   N.    W.    886,    132    Iowa 


442;  EdwaU's  Estate,  134  P.  104,  75 
Wash.  391.  And  so  wherever  the  am- 
bulatory character  remains  in  the 
grantor.  Megary's  Estate,  55  A.  963, 
206  Penn.  260.  Cf.  Griffin  v.  Mcin- 
tosh, 75  S.  W.  677,  176  Mo.  392; 
Johnson  v.  Johnson,  54  A.  378,  24  R. 
I.  571;   69  N.  Y.  S.  163. 

3.  On  the  other  hand  an  indenture 
which  provides  that  in  consideration 
of  certain  services  to  be  performed 
by  A  for  B  during  the  latter's  life,  A 
shall  be  "  the  lawful  heir  of  all  the 
land  B  now  owns,"  and  by  which  B 
agrees  to  give  most  of  his  personal 
property  presently  to  A  is  pronounce  1 
not  testamentary,  but  an  executory 
agreement,  which  upon  substantial 
performance  of  the  conditions  confers 
title  upon  A  according  to  its  tenor. 
Evans  v.  Lauderdale,  10  Lea,  73.  And 
see  Meck's  Appeal,  97  Penn  St.  313. 
Nor  can  instruments  having  the  es- 
sential characteristics  of  deeds  be 
construed  into  writings  testamentary, 
dimming  v.  Gumming,  3  Ga.  460; 
supra,  §   265,   notes.     As  in  the  case 


331 


268a 


LAW  OF  WILLS. 


[part  III. 


§  268a.  The  Same  Subject:  Miscellaneous  American  Cases. 

A  testament  may  be  made  s^imply  for  the  purpose  of  appointing 
an  executor  and  giving  liim  autliority  to  act;  and  any  will  of  such 
a  t.enor  which  is  duly  executed  and  attested,  ought  tO'  he  admitted 
to  probate,  though  brief  and  informal  in  expression.*  So  is  it 
with  an  instrument  which  simply  leaves  the  testator's  property 
"  for  distribution  under  the  laws  of  the  State."  ^  Orders  on 
savings  banks,  duly  executed,  have  been  upheld  as  testamentary 
upon  slight  phraseology  to  that  effect.®  And  so  with  promissory 
notes. '^ 


of  an  absolute  deed  of  trust  with  res- 
ervation of  a  life  interest  in  the 
grantor.  3  Ga.  460.  569.  Or  a  deed 
passing  title  in  praesenti  with  pos- 
session postponed  until  the  gra.ntor's 
death.  Griswold  v.  Griswold,  148 
Ala.  239,  42  So.  554;  Osw;ild  v.  CaM- 
well,  80  N.  E.  131,  225  I'.l.  224;  Per- 
etico  V.  Hays,  75  Kan.  76,  88  P.  738 ; 
149  Cal.  143,  84  P.  839;  Heaston  v. 
Kreig,  167  Ind.  101,  77  N.  E.  305; 
Day  V.  Meadows,  92  S  W.  637,  19 1 
Mo.  508;  Beaumont's  Estate.  63  A. 
1023,  214  Penn.  445;  85  S.  VV.  244, 
Ark.  1905;  70  N.  E.  289,  208  111.  304 
(several  such  deeds  executed  to- 
gether); Adair  v.  Craig,  33  So.  902, 
135  Ala.  332  (no  power  to  defeat  title 
reserved)  ;  Robinson  v.  Ingram,  35 
S.  E.  612,  126  N.  C.  327;  Love  v. 
Blauw,  59  P.  1059,  61  Kan.  496,  78 
Am.  St.  Rep.  432,  48  L.  R.  A.  257. 
And  see  Smith  v.  Scott,  151  S.  W.  42, 
151  Ky.  64;  Taylor  v.  Purdy,  151  S. 
W.  45,  151  Ky.  82  (deed  and  will 
executed  as  separate  instruments), 
71  S.  E.  1047,  136  Ga.  700;  Terry  v. 
Glover,  139  S.  W.  337,  235  Mo.  544. 
Or  a  deed  not  executing  a  power,  nor 
containing  a  power  of  revocation,  but 
confirming  a  will  previously  mide. 
6  Md.   235.     Sec   Grain  v.  Grain,   21 


Tex.  790.  Nor  is  a  bond  transaction, 
whicli  absolutely  transfers  a  sum  of 
money,  to  be  deemed  testamentary. 
Hinkle  v.  Landis,  131  Penn.  St.  573,. 
18  A.  941.  Nor  a  lease  of  premises 
with  reservation  to  the  lessor  of  a 
right  to  vacate  it.  Ogle's  Estate,  97 
Wis.  56,  72  N.  W.  389.  Nor  is  a 
Mortgage  of  land,  for  interest  dur- 
ing life,  principal  after  death  to 
remain  in  mortgagor  and  his  heirs, 
testamentary.  Fiscus  v.  Wilson,  74 
Neb.  444,  104  N.  W.  856. 

4.  Barber  v.  Barber,  17  Hun  (N. 
Y.),  72.     See  §  297  post. 

5.  Lucas  V.  Parsons.  24  Ga.  640,  70 
Am.   Dec.   147. 

For  other  late  instances  of  valid 
wills,  brief  and  ratlier  informal  in 
expression,  see  Wood's  Malter,  36 
Cal.  75;  Hall  v.  Bragg,  28  Ga.  330. 
An  instrument  duly  executed  and  at- 
tested, in  tlie  following  words,  "  I  do 
hereby  will  all  I  have  to  mj'  beloved 
wife,  Jane,  for  her  to  have  and  hold 
forever,"  is  a  sufficient  will  to  pass 
the  entire  real  and  personal  estate  of 
the  testator  to  the  devisee.  Clingan 
V.  Micheltree,  31  Penn.  St.  25. 

6.  134  Mass.  426.  And  see  English 
cases  cited,  post. 

7.  Cover  v.  Stem,  07  Md.  499,  1  Am. 


CHAP.    I.]  WHAT   CONSTITUTES  A  WILL.  §    2G9 

ISTotwitlistanding  English  precedents,  we  may  regard  it  as  the 
settled  doctrine  of  most  American  States,  that  a  will  must  be 
perfect  in  the  testamentary  sense,  and  designed  as  something  final 
in  shape,  and  not  preliminary,  or  it  cannot  take  effect  as  a  will ; 
and  tliis,  in  conformity  to  the  American  policy,  which  prescribes 
certain  formalities  of  execution  as  indispensable,  including  a  due 
attestation  by  witnesses.  Mere  drafts  or  minutes  of  wills  are 
therefore  inadmissible  to  probate.^  But  some  of  our  earlier  de- 
cisions, made  under  statutes  less  explicit,  and  possibly  later  ones, 
too,  in  States  whose  legislation  still  favors  holograph  wills,  and 
otherwise  departs  from  the  general  policy,  appear  to  conform  to 
a  laxer  principle.^  A  paper  drawn  up  as  a  memorandum  of  in- 
structions and  then  duly  executed  and  attested  as  a  will,  woidd 
of  course  operate  in  its  final  character  because  of  a  corresponding 
change  of  purpose  which  the  testator  had  properly  carried  out 

§  269.  The  Same  Subject:   Miscellaneous  English  Cases. 

There  are  English  cases  which  present  similar  points  of  in- 
quiry, under  the  operation  of  the  Wills  Act  of  1837.  Thus,  where 
a  person  on  his  death-bed  executed,  with  all  the  formalities  pre- 
scribed for  a  will,  a  paper  in  the  form  of  a  bill  of  exchange,  the 
instrument  was  held  entitled  to  probate;  and  under  the  circum- 
stances it  served  as  a  codicil  to  his  former  will.^  A  duly  executed 
paper  of  ithis  tenor,  "  I  wish  my  sister  to  have  my  bank-book  for 
her  own  use,"  was  held  testamentary,  upon  satisfactory  proof  that 
the  deceased  meant  it  to  operate  as  a  posthumous  disposition  and 

St.  Rep.  406,  10  A.  231;  Sunday's  Es-  1061,    253    III.    528     (note    "payable 

tate,  167  Penn.  St.  30,  31  A.  353,  and  after  my  death"). 

cases  cited;  McCourt  v.  Peppard,  105  8.  Vernam  v.  Spencer,  3  Bradf.   (N. 

N.    W.    809,    126    Wis.    326.      But    cf.  Y.)    16;   Rooff's  Appeal,  26  Penn.  St. 

De   Martini   v.   Allegretti,   79   P.   871,  219;  Rurand  v.  Wilt,  9  Penn.  St.  54; 

146  Cal.  214;  102  N.  W.  163,  13  N.  D.  Lungren     v.     Swartzwelder,     44     Md. 

574 ;  92  N.  Y.  S.  578 ;  Main's  Appeal,  482 ;   Hart  v.  Rust,  46  Tex.  556. 

48    A.    965.    73    Conn.    638     (savings  9.  See    Boofter    v.    Rogers,    9    Gill, 

bank    deposit)  ;    Smith    v.    Smith.    70  44,  A.  §  266. 

S.  E.  491,   112  Va.   205.     See  Keeler  1.  Jones  v.  Nicholay,  2  Rob.  288. 

V.    Merchants'    Trust    Co.,    97    N.    E. 

333 


§    270  LAW  OF  WILLS.  [pAKT    III. 

not  as  an  immediate  gift.^  And  there  are  other  cases  where  papers 
in  the  tenor  of  a  gift  or  transfer  of  a  fund,  properly  signed  and 
witnessed,  are  pronounced  testamentary,  upon  collateral  or  in- 
trinsic proof  that  such  was  their  design.^ 

A  deed-poll,  executed  before  two  witnesses  with  the  formality 
of  a  will,  has  been  admitted  to  probate  on  evidence  showing  that 
it  was  only  to  take  effect  at  the  maker's  death.*  So  have  writings 
in  the  form  of  a  letter,  duly  attested,  where  the  intention  shown 
was  posithumous,  even  though  the  words  of  gift  were  not  stated  in 
the  future  tense.^  Also  instructions  for  a  will  which  have  been 
duly  executed  as  final.^  Letters  sealed  and  directed  to  a  person, 
which  contain  promissory  notes,  are  held  to  be  in  effect  a  legacy ; 
and  if  not  duly  attested  in  accordance  with  the  statute,  they  are 
inoperative.^ 

Where  an  instrument  made  out  hy  a  person  abroad  in  the  form 
of  a  power  of  attorney,  but  properly  executed  as  a  will,  empowered 
another  to  collect  the  rents  of  his  lands  and  provided  also  for  the 
disposition  of  the  property  in  case  of  his  own  death  before  return- 
ing home ;  this  was  held  a  good  will  of  the  lands.^ 

§  270.  Whether  One  Instrument  may  be  partly  a  Deed  or  Con- 
tract and  partly  a  Will. 

There  appears  no  legal  objection  to  regarding  the  same  instru- 
ment as  partly  a  deed  or  contract  and  partly  a  will,  partly  for 
present  and  partly  for  posthumous  operation,  if  thei  maker  chose 
to  combine  these  purposes.  Asi  where  one,  going  on  a  journey, 
embraces  a  power  of  attorney  to  manage  his  property  and  a  testa- 

2.  Cock  V.  Cooke,  L.  R.  1  P.  &  D.  mentary  instruments  in  Milncs  v. 
241.  Foden,  15  P.  D.  105. 

3.  Coles,  Re,  L.  R.  2  P.  &  D.  362;  5.  Coles's  Goods,  9  L.  R.  2  P.  &  D. 
Robertson  v.  Smith,  L.  R.  2  P.  &  D,  362;  Miindy's  Goods,  2  S  &  T.  119. 
43;  Marsden,  Re,  1  S.  &  T.  542.  6.  Fisher's  Goods,  20  L.  T.  684. 

4.  Morgan's  Goods,  L.  R.  1  P.  &  D.  7.  Gough  v.  Findon,  7  Ex.  48. 
214.     Revocable  deeds-poll  in  which  a  8.  Doe  v.  Cross,  8  Q.  B.  714.     And 
jiower   of   appointment   was   exercised  see  Slinn's  Goods,  15  P.  D.  156. 
were   admitted   to   probate   as   testa- 

334 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    271 

ment  disposing  of  it  in  case  of  his  death  in  the  same  duly  attested 
instrument.^  To  probate  the  testamentary  part  of  the  docu- 
ment as  a  will  in  such  a  case  is  no  violation  of  'the  maker's  intent, 
but  rather  a  sanction  of  it.  It  rarely  happens,  however,  that  a 
testamentary  purpose  is  announced  so  awkwardly ;  and  the  com- 
mon presumption  being,  that  an  instrument  was  or  was  not  in- 
tended to  sitand  per  se  as  a  will,  the  court,  if  doubt  exists,  must 
make  its  choice.  In  this  latter  sense  alone  should  the  dictum  be 
imdersitood  that  the  same  paper  cannot  operate  both  as  a  will  and 
a  deed.^  For  notwithstanding  certain  provisions  contained  in  a 
testamentary  paper  are  intended  to  operate  as  a  contract  inter 
vivos,  the  insitrument  is  none  the  less  a  will  in  regard  to  its  other 
provisions.^  But,  on  the  other  hand,  an  instrument  intended  as  a 
deed  or  contract  inter  vivos  cannot  be  treated  as  a  will,  even  ithough 
worthless  and  inoperative  (as,  for  instance,  for  want  of  delivery) 
in  the  other  sense.^ 

§  271.  A  Will  is  to  be  distinguished  from  a  Gift  Inter  Vivos  or 
Causa  Mortis, 
An  intended  will  should  be  distinguished  from  an  intended  gift 
of  some  chattel,  w'hich  latter  involves  a  delivery.*     Such  a  docu- 

9.  Doe  V.  Cross,  8  Q.  B.  714;   Bar-  3.  Dawson  v.  Dawson,  2  Strobh.  Eq. 

ker's  Goods,  P.  251   (1891).     And  see  34;   Edwards  v.  Smith,  35  Miss.  197; 

Dawson  v.  Dawson,  2  Strobh.  Eq.  34;  Skerrett's   Estate,   67   Cal.   585,   8   P. 

Robinson  v.  Schly,  6  Ga.  515;   Stew-  181. 

art   V.    Stewart,    59    N.    E.    116,    177  4.  Basket  v.  Hassell,  108  U.  S.  267, 

Mass.   493;   Taylor  v.  Kelly,   31   Ala.  27  L.  Ed.  719;   2  Schoul.  Pers.  Prop. 

59,  68  Am.  Dec.  150;   Reed  v.  Hazle-  §§  135-198.     As  to  checks,  promissory 

ton,  37  Kan.  321,  15  P.  177.  not^s,    etc.,    passed    over    by    way    of 

1.  Tliompson  v.  Thompson,  19  Al:i.  gifts  causa  mortis  without  indorse- 
59 ;  Robinson,  Re,  L.  R.  1  P,  &  D.  384.  ment,  see  Veal  v.  Veal,  27  Beav.  303 ; 
A  paper  may  be  testamentary  in  de-  Clement  v.  Cheeseman,  27  Ch.  D.  631; 
sign  as  to  part  of  the  property  and  2  Sch.  Pers.  Prop.  §§  167,  197.  See 
so  admissible  to  probate,  but  incom-  formal  will  set  up  against  an  unex- 
plete  in  design  as  to  another  part  and  ecuted  disposition  by  way  of  gift,  190 
so  far  inoperative.  Devecmon  v.  De-  Penn.  St.  382.  As  to  previous  deliv- 
vecmon,  43  Md.  335.  ery  with  other  intention,  see  Cain  v. 

2.  Taylor  v.  Kelly,   31   Ala.   59,   6S  Moon   (1896),  2  Q.  B.  283. 

Am.  Dec.  150.  It   is   a   curious   circumstance   tliat 

335 


§    272  LAW  OF   WILLS.  [pART    III. 

ment,  invalid  for  want  of  proper  attestation,  cannot  be  sustained 
as  a  gift  causa  mortis^  nor  as  an  immediate  assignment,  nor  as  a 
gift  inter  vivos.^ 

To  constitute  a  gift  generally  there  must  be  an  absolute  delivery 
wdtlio'ut  conditions  (except  for  the  essential  condition  causa  mor- 
tis) as  to  the  vesting  of  title ;  but  a  donor's  promise  consistent  with 
the  gift  does  not  invalidate  it.^ 

§  272.  The  Test  in  Doubtful  Cases  as  between  a  Will  and  Some 
Other  Instrument. 

ISTow,  to  consider  the  true  test  in  a  doubtful  case,  as  to  whether 
the  particular  writing  be  really  a  will  or  siome  other  instrument. 
It  is  the  animus  testandi  in  general  which  makes  any  instrument 
a  will,  or  vice  versa?  And  it  is  laid  down  in  some  cases  that  an 
instrument  cannot  be  allowed  as  a  will  if,  at  the  time  of  execution, 
the  deceased  did  not  intend  to  make  his  will,  nor  know  that  he  was 
making  it.^  This  statement  proves  usually  accurate;  but  in  prac- 
tice, and  aside  from  legislation  which  requires  one  to  declare  it  his 
will  'before  witnesses,  the  criterion  does  not  always  serve.  To 
take,  for  instance,  that  class  of  cases  where  the  farmer  makes  a 
conveyance  of  his  land  in  form,  but  with  the  idea  of  securing  his 
sure  support  out  of  the  property  until  death ;  ^  here  it  is  often 
hard  to  discover  whether,  technically  speaking,  the  disposition  was 
testamentary  or  not;  and  in  all  probability  the  disposer  himself 
had  no  clear  opinion  on  that  point.     But  the  transaction  itself  is 

while  our  modern  statutes  tend  to  re-  A  promissory  note,  to  become  due  on 

strain  or  alwlish  the  making  of  nun-  the  maker's  death,  is  not  testamentarv 

cupative  or  oral  wills,  they  freely  per-  as  to  formalities  but  is  governed   by 

mit  gifts  causa  mortis,  which  are  of  the  rule  of  gifts  and  contracts.     lb. 
essentially    the    same    character    and  7.  Lylcs  v.  Lyles,  2  Nott.  &  M.  531; 

equally  liable  to  objection.  McCloskey  v.  Tierney,  74  P.  699,  141 

5.  Huglirs,  Re,  W.  N.  (1888)  163;  Cal.  101,  99  Am.  St.  Rep.  33;  77  P. 
Smith  V.  Iloldcn,  58  Kan.  535,  50  P.  71,  143  Cal.  528;  Smith  v.  Holden,  58 
447.  Kan.  535.  447. 

6.  See  Beatty  v.  Western  College,  8.  Swett  v.  Boardman,  1  Mass.  25S; 
177  111.  280.  69  Am.  St.  Rep.  242,  42  Combs  v.  Jolly,  3  N    J.  Eq.  625. 

L.  R.  A.  52  N.  E.  432,  and  cases  cited.  9.  Siupra,  §  268,  and  cases  cited. 

33  G 


CnAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    272 

seen  to  be  eitlier  testamentary  in  character,  or  the  reverse;  and 
as  this  is  the  transaction  the  maker  intended,  his  instrument  is 
declared  a  will  or  a  deed  accordingly.  Even  though  he  could  be 
eho-wn  to  (have  intended  it.  as  a  will  and  attested  it  as  such,  this 
would  not  avail  as  against  the  actual  transaction;  and  so  vice 
versa}  In  other  words,  to  adopt  the  language  of  an  eminent  Eng- 
lish judge,  "  whether  the  maker  would  have  called  this  a  deed  or 
a  will  is  one  question ;  whether  it  shall  operate  as  a  deed  or  a  will 
is  a  distinct  question  that  is  to  be  governed  by  the  pirovisions  in 
the  instrument."  ^ 

In  short,  to  determine  tlie  true  dharacter  of  a  doubtful  instru- 
ment we  must  read  the  intention  of  the  maker  by  the  light  of  the 
transaction  itself,  as  shown  by  the  provisions  of  the  instrument 
^nd  all  the  surrounding  circumstances.  If  the  intention  be  to 
oonvey  in  effect  a  present  estate  or  interest  upon  the  execution  of 
the  instrument;  by  which  is  meant,  not  necessarily  a  present  vested 
interest  in  possession,  since  any  grantor  might  reserve  to  himself 
or  create  for  another's  benefit  a  life  estate,  with  all  use  and  occupa- 
tion, rents  or  profits,  by  way  of  precedence;  the  instrument  is  a 
deed  and  not  a  will.^  But  to  be  a  will  the  estate  must  accrue  and 
take  effect  only  after  the  maker's  death ;  and  if  such  be  the  opera- 
tion, the  instrument  is  not  a  deed.*     IsTo  paper  can  be  deemed  tes- 

1.  Whether  a  writing  is  a  will,  de-  Coulter  v.  Shelmadine,  53  A.  638,  204 
pends  upon  its  contents,  and  not  upon  Penn.  120;  Smith  v.  Baxter,  53  A. 
any  declaration  of  the  maker  that  it      1125,  68  N.  J.  L.  414. 

is   a  will  when  he  executes   it.     Pat-  It  is   perhaps  enough  to   &ay,  that 

terson  v.  English,  71  Penn.  St   454.  if   the   maker   intended   a   disposition 

2.  BuUer,  J.,  in  Habergham  v.  Vin-  which  was  in  legal  effect  testament- 
cent,  2  Ves.  Jr.  231.  ary,  that  disposition  will  be  regarded 

A  voluntary  conveyance  to  A,  which  as  testamentary, 

is  placed  in  the  hands  of  a  third  per-  3.  Gates  v.  Gates,  135  Ind.  272,  34 

son,  to  be  delivered  after  the  grantor's  N.  E.  957,  and  cases  cited, 

death,  is  not  testamentary,  but  a  gift,  4.  Habergham  v.  Vincent,  2  Ves.  Jr. 

if  all  control  to  alter  is  p:irted  with,  231;  Williams  v.  Tolbert,  66  Ga.  127; 

even  though  the  grantor  retain  an  in-  Morgan's  Goods,  L.  R.  1  P.  &  D.  214; 

terest  for  life.     Bogm  v.  Swearingen,  Reed  v.  Hazleton,  37  Kan.  321,  15  P. 

es  N.  E.  426,  199  111.  457;   Clirist  v.  177, 
Kuehne,  72  S.  W.  537,  172  Mo.  118; 

22  337 


§    273  LAW   OF   WILLS.  [part    III. 

tameiitary  and  entitled  to  probate  as  a  will,  unless  the  benefit  it 
confers  is  postponed  to  tJhe  death  of  the  party  who  confers  it.^ 
"Nor  can  that  usually  be  pronounced  a  testamentary  document 
although  suitably  witnessed,  which  unequivocally  declares  on  its 
face  that  it  is  not  meant  as  a  will.^ 

§  273.  The  Same  Subject:    Conclusion. 

The  form  of  the  instrumenit  in  controversy  will  usually  deter- 
mine its  true  character,  unless  a  contrary  intention  appears  on  its 
faee.^  But  collateral  evidence  is  freely  admitted  where  the  in- 
strument itself  is  silent  or  equivocal,  in  order  to  show  whether  or 
not  a  (testamentary  disposition  was  actually  intended.^  The  facts 
of  execution  and  delivery,  the  declarations  of  the  maker  at  the 
time,  and  all  the  surrounding  circumstances  of  the  transaction, 
together  with  the  instrument  itself,  may  be  considered  in  such  a 
connection.^  And  notwithstanding  the  use  of  technical  words  and 
expressions,  which  might  lead  to  a  different  conclusion,  the  paper 
will  be  pronounced  what,  upon  the  whole,  the  true  scope  and  bear- 
ing of  its  contents  entitle  it  to  be  considered.^  On  the  presump- 
tion that  all  was  done  rightly,  probate  has  been  granted  of  a  will 
executed  in  the  form  of  a  deed,  even  though  the  attesting  witnesses 
ihad  no  precise  recollection  of  the  circumstances  of  the  execution.^ 

5.  Hence  a  paper  which  directs  a  Armstrong  v.  Armstrong,  4  Baxt.  357. 
benefit  to  be  conferred  inter  vivos  8.  Jones  v.  Nicholay,  2  Robert.  292 ; 
without  express  or  implied  reference  3  Sw.  &  Tr.  586;  Cock  v.  Cooke,  L. 
to  the  maker's  death,  cannot  be  es-  R.  1  P.  &  D.  241;  Robertson  v.  Smith, 
tablished  as  a  will.  1  Wms.  Exrs.  L.  R.  2  P  &  D.  43;  Gage  v.  Gage,  12 
107;  Glynn  v.  Oglander,  2  Hagg.  428;  N.  H.  371;  Sharp  v.  Hall,  86  Ala.  110, 
3  Hagg.  218,  4  Hagg.  359.  11  Am.  St.  Rep.  23,  5  So.  497:  105  N. 

6.  Ferguson-Davie  v.  Ferguson-  W.  1110,  42  Mich.  589.  See  §  277, 
Davie,  15  P.  D.  109.     Here  the  piper,      post. 

made   subsequently   to   the   will,    dis-  9.  lb. 

tinctly  stated:      "This   is  not  meant  1.  1  Jarm.  Wills,  18;   Thompson  v. 

as  a  legal   will,  but  as  guide;  "  and  Johnson,    19    Ala.    59;    Hamilton    v. 

the  court  refused  to  consider  it  a  codi-  Peace,    2    Desaus.    92;    Armstrong    v. 

cil.     Cf.  §  275;   Patterson  v.  English,  Armstrong,  4  Baxt.  357;   Rawlings  v. 

eupra.  McRoberts,  95  Ky.  346,  25  S.  W.  601. 

7.  lb.;  Miller  v.  Holt,  68  Mo.  584;  2.  Colyer's  Goods,  14  P.  D.  48.     As 

338 


CHAr.    I.]  WHAT  CONSTITUTES  A  WILL.  §    274 

§  274.  Posthumous  and  Ambulatory  or  Revocable  Character  of 
a  Will. 

The  great  criterion,  then,  of  a  testamentary  disposition  is,  that 
by  intendment  it  takes  eifect  only  at  the  death  of  the  maker,  vest- 
ing no  earlier  interest  in  the  beneficiary.  An  instrument,  what- 
ever its  form,  is  testamentary  where  its  obvious  intention  is  to 
serve  no  purpose  and  have  no  effect  until  after  the  death  of  its  au- 
thor. And  the  chief  and  usual  incident  of  such  a  disposition  is, 
that  until  the  maker's  death:,  it  continues  ambulatory  or  revocable 
at  his  discretion.  In  general,  an  instrument  which  purports  to 
be  a  last  will,  and  purports  to  dispose,  not  of  present  property,  but 
of  that  whichi  the  maker  shall  at  his  death  be  seized  or  possessed, 
is  ineffectual  in  any  other  sense  than  as  a  will,  and  must  be  duly 
executed  with  whatever  formalities  the  statute  may  have  imposed.^ 
On  the  other  hand,  where  a  conveyance  or  instrument  of  transfer 
of  one's  present  property  is  made  with  no  power  reserved  to  revoke, 
there  is  usually  no  will.* 

A  transaction  in  the  nature  of  an  agreement  upon  mutual  cour 
eideration,  which  is  made  irrevocable  and  binding  upon  the  person 
who  stipulates  what  shall  be  done  in  the  event  of  his  death,  cannot 
in  general  be  held  to  involve  a  will,^     But  there  may  be  a  will, 

to  a  power  of  attorney,  wide  enough  a   deed.     Belgarde  v.   Carter,    146   S. 

in  scope  to  have  a  testamentary  char-  W.  964  (Tex.  Civ.  App.). 

acter,  see  supra,  §  269.  5.  Meck's  Appeal,  97  Penn.  St.  313. 

3.  Poore  v.  Poore,  55  Kan.  687,  41  An  antenuptial  marriage  settlement 
P.  973;  Conrad  v.  Douglas,  59  Minn.  rendered  irrevocable  on  the  marriage 
498,  61  N.  W.  673.  One's  testamen-  is  not  a  testamentary  paper.  8  Ir. 
tary  purposes  are  revocable  at  his  Eq.  567.  Nor  is  an  instrument  by 
will.  Van  Horn  v.  Demarest,  77  A.  way  of  lease  with  provision  as  to  ap- 
354,  76  N.  J.  Eq.  386;  143  N.  Y.  S.  plying  rents  in  the  event  of  the  les- 
1148  (word  "final"  used);  Aldrich  sor's  death;  this,  too,  is  irrevocable. 
v.  Aldrich,  102  N.  E.  487,  215  Mass.  Robinson's  Goods,  L.  R.  1  P.  &  D. 
164   ("last  will").  384.     A.  gave  a  writing  to  his  bank- 

4.  68  S.  W.  411,  24  Ky.  Law,  262;  ers  which  he  called  "an  assignment." 
41  S.  E.  602,  115  Ga.  277;  cases,  §  But  it  was  in  its  purport  a  will. 
268,  suprrh.  What  was  intended  as  a  Comer  v.  Comer,  120  111.  425.  See 
will,  but  failed  as  such  for  want  of  also  Morrison  v.  Bartlett,  147  S.  W. 
due  execution,  cannot  be  turned  into  761,   148   Ky.   833.     As  to   a  writing 

339 


§    275  LAW  OF   WILLS.  [pART    III. 

given  "upon  some  consideration  by  way  of  an  independent  cove- 
nant, for  the  breach  of  which  even  third  parties  might  rightfully 
sue.®  Where  the  consideration  kept  in  view  is  service  or  the  tes- 
tator's life  support  from  the  intended  beneficiary,  his  own  power 
to  revoke  the  will  (or,  indeed,  to  leave  no  will  at  all,  or  a  different 
sort  of  one)  is  his  constant  security.'^  The  modem  equity  doctrine 
of  mutual  or  joint  wills,  however,  or  of  a  contract  upon  good  con- 
sideiration  to  execute  some  particular  will,  introduces  a  new  refine- 
ment, by  way  of  eliminating  this  revocable  or  ambulatory  incident, 
otherwise  universal ;  which  subject  we  shall  discuss  in  place  here- 
after.* The  idea  that  the  maker  intended  a  will  and  not  a  transfer 
inter  vivos,  is  strengthened  by  the  circumstance  that  he  kept  the 
doubtful  instrument  under  his  own  control,  thus  suspending  de- 
livery until  his  death  and  making  it  easy  to  revoke  the  disposition.^ 

§  275.  What  a  Testator  executes  as  his  Will,  should  so  operate, 
notwithstanding  his  Mistake  of  Law. 
The  instrument  which  a  testator  executes  finally  as  his  will, 
should  so  operate,  if  all  legal  formalities  have  been  actually  com- 
plied with,  notwithstanding  his  mistaken  belief  that  other  formali- 
ties were  requisite.^     As  where  one  makes  what  is  a  will,  in  sub- 

which   commenced   "  It   is   my   wish,"  bee  v.   Williams,   80  Ky.   C61,  where, 

etc.,   see   Gaston's   Estate,    188    Penn.  however,  the  facts  as  reported  appear 

St.  374.  hardly    satisfactory.      A.    executed    a 

6.  Armstrong  v.  Armstrong,  4  Baxt.  holograph   will,   supposing   a  witness 
357.  clause  necessary  to   complete  it,   and 

7.  See  Miller  v.  Holt,  68  Mo.  584.  handed  it  for  suggestions  to  his  law- 

8.  See  Part  V.,  post,  C.  I.  as  to  joint  yer,  who  made  slight  changes  and  re- 
or  Mutual  Wills,  etc.  turned    it.     Holograph    wills    in    that 

9.  See  Nichols  v.  t'handler,  55  Ga.      State  require  no  witnesses  to  the  tes- 
369.  tator's  signature;    and  the  court  ad- 

1.  This  principle  requires,  as  we  mitted  the  will  to  probate,  treating 
presume,  that  the  testator  executed  the  changes  made  by  the  lawyer  as  no 
the  paper  with  a  final  testamentary  part  of  it.  The  opinion  states,  how- 
purpose,  and  not  as  a  mere  prelimin-  ever,  that  the  will  was  wholly  writ- 
ary  or  deliberative  writing.  See  ten  and  signed  by  the  testator  with 
Fisher's  rk)ods,  20  L.  T.  684.  The  the  intent  tliat  it  should  be  his  will, 
rule  of  the  text  is  supported  by  Toeb- 

340 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    27G 

stance,  but  expresses  therein  an  intention  of  making  later  a  more 
formal  one.^ 

§  276.  Writings,  otherwise  intended  by  the  Maker,  how  far  up- 
held as  Testamentary  by  the  Courts. 
While  informal  and  unattested  writings  were  upheld  in  Eng- 
land as  wills  of  personal  property  (though  not  as  devises  of  land), 
and  a  man  was  hardly  thought  to  deserve  a  respeotable  name  after 
death  unless  he  left  some  will  behind  him  disposing  of  his 
property,  real  and  personal,  instruments  not  really  meant  to  be 
wills  were  allowed  so  to  operate  as  to  personalty,  if  they  could  not 
operate  in  the  character  intended.  Why  ecclesiastical  courts  ac- 
corded this  favor  was,  because  they  exercised  a  flexible  discretion 
in  the  premises ;  and  their  argument  was  that  the  maker,  having 
died  without  making  any  other  disposition  of  his  personalty,  his 
purpose  could  only  be  effected  by  treating  (the  paper  as  testamen- 
tary. Hence,  if  the  purpose  disclosed  was  tO'  make  a  disposition 
of  one's  property  after  his  death,  the  instrument  was  treated  as  a 
will,  though  actually  meant  to  operate  as  a  sottlement,  or  a  deed  of 
gift,  or  a  bond.^  Some  American  cases  proceed  upon  the  same 
view.*  "  But  no  case,"  observes  Mr.  Williams,  "  has  gone  the 
length  of  deciding,  that  because  an  instrument  cannot  operate  in 
the  form  given  to  it,  it  must  operate  as  a  will ;"  ^  and  that  eminent 
writer's  inclination  was  evidently  to  conform  this  theory  to  the 
safer  principle  we  have  already  adduced ;  namely,  that  the  true 
intent  and  scope  of  the  instrument,  whatever  the  form  or  the 
maker's  apprehension  or  misapprehension  as  to  its  legal  effect, 
shall  sufficiently  conclude  it  a  testament  and  give  it  the  testamen- 
tary operation  which  legally  belongs  to  it.^  Under  the  prevalent 
policy  of  our  day,  which  insists  upon  formal  signature  and  at- 

2.  Beebe,  Re,  6  Dem.   (N.  Y.)   43.  ment   intended   to  operate   as   a  deed 

3.  Masterman  v.  Maberly,  2  Hagg.  cannot  take  effect  as  a  will,  though 
247.  See  Morgan's  Goods,  L.  R.  1  P.  invalid  as  a  deed.  Edwards  v.  Smith, 
&  D.  214.  35  Miss.  197. 

4.  Kelleher  v.  Kernan,  60  Md.  440.  6.  Supra,  §  270;   15  P.  D.  109. 

5.  1   Wms.   Exrs.   106.     An   instru- 

341 


§    277  LAW   OF   WILLS.  [PAKT    III. 

testation,  and  treats  intestacy  as  no  such  serious  misfortune,  courts 
will  hardly  venture  beyond  tlie  shadow  of  that  principle. 

§  277.  Extrinsic  Evidence  not  Admissible  to  dispute  the  Plain 
Tenor  of  the  Instrument;  Effect  of  Doubt,  etc. 

In  the  cases  we  have  thus  considered,  where  extrinsic  and  parol 
evidence  was  admitted  to  show  whether  an  instrument  was  or  was 
not  testamentary  in  its  true  intent,  a  doubt  was  suggested  on  the 
face  of  the  instrument.  Where,  however,  in  both  form  and  sub- 
stance, the  writing  is  plainly  a  will,  and  execution  with  all  the  pre- 
scribed formalities  can  be  shown,  its  obvious  intent  and  scope  can- 
not be  contradicted  or  controlled  in  operating  by  parol  and  extrinsio 
evidence.^  And  if,  on  the  other  hand,  an  instrument  expressed 
and  executed  as  a  deed  be  delivered  inter  vivos  to  the  party  who  on 
its  face  appeared  entitled  to  it,  no  agreement  in  conflict  with  its 
plain  tenor  can  be  proved  after  the  maker's  death,  to  show  (that  its 
operation  was  testamentary  or  dependent  on  some  condition  subse- 
quent.* So,  too,  where  judgment  notes  are  made  out  and  wit- 
nessed, papers  whose  tenor  on  the  face  as  such  is  clear,  intelligent 
and  unambiguous,  and  nothing  said  or  done  at  their  execution 
denoted  or  implied  that  they  were  not  to  be  delivered  during  the 
maker's  lifetime,  or  that  their  operation  was  to  be  positponed  to 
his  death),  they  are  not  entitled  to  probate  as  testamentary.' 

Where,  however,  something  to  suggest  a  doubt  as  to  whether  the 
instrument  was  intended  to  be  testamentary  or  not  appears  on  the 
face  of  it,  extrinsic  evidence  as  to  the  circumstances,  besides  the 
fact  of  execution,  is  admissible,  so  as  to  enable  the  court  to  deter- 
mine the  true  character  of  that  instrument.^  This  does  not  throw 
upon  the  propounder  a  burden  of  proof  which  he  fails  to  satisfy 

7.  Whytn  v.  Pdllok,  7  App.  Cas.  Hoiist.  569;  190  Penn.  St.  476  42  A. 
400;  Sewell  v.  SlinglulF,  57  Md.  537;  886  (extrinsic  evidence  admitted); 
£nf,'li9h's  Goods,  3  S.  &  T.  586.  Kelley  v.  Shimer,  152  Ind.  290,  53  N. 

8.  Black  V.  Shreeve,  2   Beasl.  458;  E.  233. 

Davy's  Goods,  1  S.  &  T.  262.  1.  Whyte    v.    Pollok,    7    App.    Cas. 

9.  Sunday's    Estate,    167    Penn.    St.      400. 
30.     And   see  Kirkpatrick  v.   Pyle,   6 

342 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    278 

if  the  evidence  does  not  confirm  the  instrument  as  a  will ;  but  the 
natural  consequence  is,  that  the  court  will  fall  back  upon  the  in- 
strument itself,  and  apply  sound  principles  of  construction  to 
arrive  at  its  real  characiter,  just  as  it  would  in  interpreting  any 
other  document.^ 

§  277a.  Doubtful  Writing,  if  Pronounced  a  Will,  fails  unless 
formally  executed. 
It  is  obvious  that  such  a  writing  of  doubtful  character  as  we 
have  considered  must  fail  of  probate  and  enforcement  altogether 
if  pronounced  a  will,  unless  executed  with  all  the  statu/te  formali- 
ties which'  a  testament  requires.^ 

§  278.  Wills  made  in  Jest  or  without  the  Animus  Testandi,  etc. 
Wills,  to  be  valid,  require,  of  course,  the  genuine  animus  tes- 
tandi ;  to  the  extent,  ait  least,  of  intending  a  disposition  whose  legal 
effect  the  court  may  safely  pronounce  testamentary.  The  mind 
should  act  freely  and  understandingly  to  tbis  intent ;  and  therefore 
it  may  be  shown  in  evidence  to  vitiate  an  alleged  will,  not  only 
that  it  was  the  offspring  of  an  unsound  mind,  of  essential  error,  or 
of  coercion,  but  that  it  was  written  in  jest,  or  without  any  idea 
of  making  an  operative  will.*  Such  jests,  however,  are  unsafe 
ones ;  and  parol  evidence  tending  to  prove  that  a  paper  expressed 
and  executed  with  all  solemn  formalities  as  a  will  was  not  so  in- 
tended, or  was  only  to  operate  under  certain  reservations  not  dis- 
closed on  it®  face,  is  very  little  encouraged  by  authority.^ 

2.  lb.  per  Lord  Selborne.  Webster,    100   N.    E.    637,    213   Mags. 

3.  Cover  v.  Stem,  67  Md.  449, 1  Am.      491;  Remer  v.  Benedict,  88  A.  383,  81 
St.    Rep.   406,    10   A.    231;    Comer   v.      N.  J.  Eq.  222. 

Comer,    120   111.    421,    11    N.    E.    848.  4.  Nichols    v.    Nichols,    2    Phillim. 

And  see  as  to  articles   of  copartner-  180;  Lister  v.  Smith,  3  Sw.  &  Tr.  282; 

ship  of  a  testamentary  character,  Mc-  Swett   v.   Boardman,   1   Mass.   258,   2 

Kennon    v.    McKennon,    46   Fed.    713.  Am.  Dec.  16.     And  see  §§  215a,  216, 

See  also  Griffin  v.  Mcintosh,  75  S.  W.  supra;  Fleming  v.  Morrison,  72  N.  E. 

677,  176  Mo.  392    (deed  in  form)  ;   80  499,  187  Mass.  120,  105  Am.  St.  Rep. 

N.  E.  131,  225  111.  224;  Keeler  v.  Mer-  386    (a  "  fake"  will), 

chants'  Trust  Co.,  97  N.  E.  1061,  253  5.  See  Sewell  v.  Slingluff,  57  Md. 
111.  528  (promissory  note)  ;  Russell  v. 

343 


§    280  LAW  OF  WILLS.  [pART    III. 

§  279.  Regular  Papers  imply  the  A.nimus  Testandi;  otherwise 
with  Papers  which  are  not  on  their  Face  Testamentary. 
A  regular  paper  regularly  executed  speaks  for  itself,  and  the 
animus  testandi  is  naturally  inferred.  But  papers  which  are  not 
clearly  on  their  face  of  a  testamentary  character,  even  though 
signed  and  attested,,  require  to  have  the  animus  testandi  shown  to 
the  satisfaction  of  the  court.®  Any  instrument  manifestly  exe- 
cute^d  as  a  will  and  testamentary  in  character  is  4:o  h&  admitted  to 
probate  without  considering  its  peculiar  legal  effect.^ 

§  280.  Several  Papers  probated  together  as  constituting  a  Will; 
Will  and  Codicils,  etc. 

It  is  not  essential  that  the  last  will  of  a  testator  be  expressed  in 
a  single  instrument.  The  instance  of  a  will  with  several  codicils 
is  a  familiar  one  in  point.  And  there  may  be  several  papers  of 
different  natures  and  forms,  constituting  a  will  when  taken  to- 
gether ;  ^  wills,  for  instance  which  dispose  separately  of  property 
foreign  and  domestic ;  ^  not  in  full  effect,  however,  in  these  times, 
■unless  the  local  statute  prescribing  a  formal  signature  'and  attesta- 
tion be  duly  complied  with.^ 

537,  547;   Brown  v,  Avery,  58  So.  34  235;  Phelps  v.  Bobbins,  40  Conn.  250; 

Fla.    (1912).  Wikoflf's  Appeal,  15  Penn.  St.  281,  53 

6.  Thorncroft  v.  Lashmar,  2  Sw.  &  Am.  Dec.  597;  1  Tuck.  Sur.  (N.  Y.) 
Tr.  479;  Whyte  v.  Pollok,  7  App.  Cas.  205;  1  Bradf.  Sur.  (N.  y.)  114 ;  36 
400.  Col.  467,  85  P.  84,  63. 

7.  Taylor  V.  D'Egville,  3  Hagg.  206 ;  9.  As  to  two  holographic  instru- 
Mundy's  Gk)ods,  2  S.  &  T.  119.  By  ments  constituting  one  will,  see  Mur- 
way  of  evidence  as  to  whether  the  phy's  Estate,  104  Cal.  554,  38  P.  543, 
doubtful  instrument  was  intended  as  63  S.  W.  937.  See  (1893)  P.  254. 
a  will  reference  may  be  made  to  sur-  1.  A  former  will  absolutely  and 
rounding  circumstances,  contempor-  fully  revoked  by  a  later  one  ought 
aneous  writings  of  the  decedent  and  to  constitute  no  part  of  the  probate; 
the  like.  Smith  v.  Smith,  70  S.  E.  but  such  reference  in  the  latter  to 
491.  112  Va.  205.  the  former  will  as  makes  it  only  pro 

8.  1  Wms.  107;  Morgan's  Goods,  tanto  a  revocation,  entitles  the  two 
L.  R.  1  P.  &  D.  323;  Sandford  v.  papers  to  probate  as  containing  to- 
Vaughan,  1  Phillim.  39;  Hitchings  v.  gether  the  last  will.  Cf.  Sinclair's 
Wood,  2  Moore  P.  C.  355;  4  S.  &  T.  Goods,  3  Curt.  746;  and  Duff's  Goods, 
23;   Mastcrman  v.  Mabcrly,  2  Hagg.  4  Notes  of  Cas.  474;  1  Wms.  Exrs.  97^ 

344 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    281 

§  281.  Instruments  Incorporated  in  the  Will  and  Documents 
Extraneous. 

It  is  held,  moreover,  in  various  ins^tances,  that  if  a  testator 
refers  in  his  duly  executed  and  attested  will  to  another  paper  which 
has  already  been  written  out,  clearly  and  distinctly  identifying  and 
deserihing  it,  so  that  it  may  safely  be  incorporated  in  so  solemn 
a  disposition,  that  paper  should  be  probated  as  part  of  the  will 
itself.  But  a  later  or  even  a  contemporaneous  writing,  having  the 
character  of  a  mere  letter  of  instructions  to  one's  executors,  and 
not  being  executed  and  attested  as  the  law  requires,  can  have  no 
testamentary  operation,  and  should  not  be  admitted  to  probate. 
And,  in  general,  an  extraneous  unattested  writing,  ito  be  incor- 
porated with  the  will  itself,  should  be  reasonably  identified  by  ref- 
erence as  part  of  it  and  as  existing  when  the  will  was  executed.^ 

The  modem  English  and  American  rule  on  this  point  is  suc- 
cinctly stated  in  a  Massachusetts  case :  "  If  a  will,  executed  and 
witnessed  as  required  by  statute,  incorporates  in  itself  by  refer- 
ence any  document  or  paper  not  so  executed  and  witnessed,  whetJaer 
the  paper  referred  to  be  in  the  form  of  a  will  or  codicil,  or  of  a 
deed  or  indenture,  or  of  a  mere  list  or  memorandum,  the  paper  so 
referred  to,  if  it  was  in  existence  at  the  time  of  the  execution  of 
the  will,  and  is  identified  by  clear  and  satisfactory  proof,  as  the 
paper  refea-red  to  therein,  takes  effect  as  part   of    tiie   will    and 

Part  IV.,  post.    A  testator  may  make  St.  381,  52  Am.  Rep.  478;   Pollock  v. 

separate  wills  as  to  separate  parts  of  Greassell,    2    Gratt.    439;    Tonnele    v. 

his   estate,    and   unless   one   ineorpor-  Hall,  4  Comst.  140;  Beall  v.  Cunning- 

ates  another  they  need  not  all  be  pro-  ham,  3  B.  Mon.  390;  l  Wms.  Exrs.  97, 

bated  together.     St.  John's  Parish  v.  and  cases  cited;   Brown  v.   Clark.  77 

Bostwick,  8  App.  D.  C.  452.  N.  Y.   369,   3   Rich.   Eq.   305;    14  Mo. 

2.  Habergham  V.  Vincent,  2  Ves.  Jr.  587;    Chambers  v.   McDaniel,   6   Ired. 

204;    Singleton  v.  Tomlinson,   3  App.  226:    117  Penn.   St.   238,   2   Am.   Rep. 

Cas.   404;    Sibthorp's  Goods,  L.  R.   1  660,   14   A.   816;    Willey's   Estate,   60 

P.  &  D.  106;   Bizzey  v.  Flight,  3  Ch.  P.  47,  128  Cal.  1;  Schillinger  v.  Ba-v- 

D.    269;     (1893)     P.    254;    Lucas    v.  lek,   112  N.  W.   110,   10  Iowa,   1907; 

Brooks,  18  Wall.  436,  21  L.  Ed.  779;  Magnus  v.  Magnus,  84  A.  705,  80  N. 

Newton   v.    Seaman's   Friend   Society,  J.     Eq.     346     ("my    instructions    to 

130  Mass.   91,   39   Am.   Rep.   433:    15  A"     insufficient     for    a     reference); 

Hun,  410;  Baker's  Appeal,  107  Penn.  Baldwin  v.   Barber,   151   S.   W.   1124,, 

345 


§  281 


LAW  01?  WILLS. 


[part  hi. 


should  be  admitted  to  probate  as  such.''  ^  In  oonfonnity  with  such 
a  doctrine,  a  will  which  was  void  for  want  of  proper  attestation, 
has  been  validated  by  a  subsequent  codicil  properly  attested,  which 
sufficiently  refers  to  and  embraces  it.'' 

As  to  a  paper  not  actually  in  existence,  but  hereafter  to  be  pre- 
pared and  executed,  no  reference  in  the  existing  will  can  give  it 
any  valid  testamentary  effect,  independently  of  its  own  proper 
execution  as  a  will  in  conformity  with  the  statute.  Hence,  the 
testator  cannot  reserve  a  power  to  dispose  of  property  at  a  future 
time  by  what  is  tantamount  to  a  will  informally  executed.^  Nor 
to  select  a  legatee  under  some  subsequent  writing.^     Indeed,  the 


148  Ky.  370;  Keeler  v.  Merchants' 
Trust  Co.,  97  N.  E.  528,  253  111.  528 
(parol  evidence  not  admitted  to  in- 
corporate, where  the  will  itself  omits 
reference);  Martindale's  Will,  127  N. 
Y.  S.  887;  Hopper's  Estate,  134  N. 
W.  237,  90  Neb.  623. 

Where  the  will  (not  read  by  the 
witnesses)  stated  one  thing  about  pa- 
pers to  be  incorporated,  while  the  tes- 
tator told  the  witnesses  something 
else,  identity  is  not  established.  Gar- 
nett's  Goods,    (1894)   P.  90. 

3.  Gray,  C.  J.,  in  Newton  v.  Sea- 
man's Friend  Society,  130  Mass.  91, 
39  Am.  Rep.  433.  The  instrument  is 
thus  considered  as  identified  with  and 
forming  part  of  the  will  itself,  in  the 
same  manner  as  if  repeated  totidem 
verbis  in  the  will  itself.  3  Curt.  468, 
493.  But  to  incorporate  a  document 
in  the  probate  of  a  will,  three  things 
are  necessary:  (1)  that  the  will 
should  refer  to  the  document  as  then 
in  existence;  (2)  proof  that  the  docu- 
ment propounded  was  in  fact  written 
before  the  will  was  made;  and  (3) 
proof  of  the  identity  of  such  document 
with  tliat  referred  to  in  the  will. 
Kehol's  Goods,  13  L.  R.  Ir.  13.     An  1 


see    Singleton    v.    Tomlinson,    3    App. 
Cas.  404. 

Williams  considers  the  state  of  thi 
English  law  as  very  unsatisfactory  on 
this  point,  where  the  document  re- 
ferred to  is  not  per  se  testamentary, 
especially  in  cases  where  the  paper 
is  in  the  hands  of  another  party,  who 
cannot  be  forced  to  produce  it.  1 
Wms.  Exrs.  97,  note;  Sheldon  v. 
Sheldon,  1  Robert.  81;  Astor's  Goods, 
1  P.  Div.  170.  The  probate  court  in 
such  cases  exercises  discretion  accord- 
ing to  the  circumstances.  Sibthorp's 
Goods,  L.  R.  1  P.  &  D.  106;  Jordan 
V.  Jordan,  65  Ala.  301 ;  60  A.  266,  77 
Conn.  604,  107  Am.  St.  Rep.  64. 

4.  Murfield's  Will,  74  Iowa,  47!); 
§  448,  post.     Cf.  83  Ky.  584. 

5.  Johnson  v.  Ball,  5  De  G.  &  Sra. 
85;  Langdon  v.  Astor,  3  Duer,  477; 
s.  c,  16  N.  Y.  9;  Thayer  v.  Welling- 
ton, 9  Allen,  283;  Croker  v.  Lord 
Hertford,  4  Moore  P.  C.  339;  3  Curt. 
468;  Grabill  v.  Barr,  5  Penn.  St.  441, 
47  Am.  Dec.  418. 

6.  Dennis  v.  Holsapple,  148  Ind. 
297,  300,  62  Am.  St.  Rep.  526;  46  L. 
R.  A.  168,  47  N.  E.  631;  Shields  v. 
Freeman,  73  S.  E   805,  158  N.  C.  125. 


346 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    282 

written  reference  in  the  will  to  a  paper  as  something  to  be  after- 
wards prepared,  sufficiently  debars  that  paper  from  being  legally 
incorporated  with  i«t;  for  parol  evidence  of  the  time  of  prepara- 
tion is  held  inadmissible  to  contradict  such  reference."^  And  in 
some  of  our  States,  the  courts  are  very  reluctant  to  admit  as  wills 
any  extraneous  unattested  paper  whose  purport  is  to  dispose,  and 
not  merely  to  explain,  describe,  or  arrange  the  details  under  the 
formal  instrument.''  A  testator  cannot  be  too  scrupulous  about 
having  his  will  in  final  and  complete  shape  before  the  execution 
takes  place,  and  avoiding  all  amendments  and  additions  afterwards 
without  the  full  solemnities.' 

§  282.  The  Same  Subject:  Parol  Evidence,  how  far  Admissible; 
Later  Adoption  in  Form;  Burden  of  Proof. 
Parol  evidence  is  admissible,  in  case  of  doubt,  to  identify  the 
reference  made  in  a  duly  executed  will  as  to  other  attested  or  unat- 
tested papers  already  existing,  so  as  <to  incorporate  all  together 
in  the  probate.  To  use  the  language  of  Lord  Kingsdown  in  an 
English  privy  council  case  on  this  subject:  "  The  result  of  the  au- 

7.  Sunderland,  Re,  L.  R.  1  P.  &  D.  posed  to  the  general  current  of  au- 
198.      The    reference    must    be    such      thority. 

that,  with  the  assistance  of  parol  evi-  Where  a  will,  otherwise  complete, 
dence  when  necessary  and  properly  refers  to  a  schedule  as  annexed  for 
admissible,  the  connection  may  be  the  disposition  of  certain  assets, 
clearly  established  between  the  will  which  is  not  annexed,  the  will  is  good 
and  the  existing  paper.  And  see  pro  tanto.  Thompson  v.  Quimby,  3 
Durham  v.  Northen,  (1895)  P.  66.  Bradf.  (N.  Y.)  449.  And  see  §  283. 
If  a  will  refers  to  a  paper  as  after-  9.  See  6  Dem.  (N.  Y.)  262  (care- 
wards  to  be  executed,  a  later  codicil  lessly  appending  such  papers  without 
making  no  reference  back  cannot  suf-  due  reference  in  the  will).  As  to 
fice  to  incorporate  such  paper.  Mat-  identifying  by  parol  a  document  re- 
thias's  Goods,  3  S.  &  T.  100.  1  S.  &  T.  ferred  to  in  the  will,  see  University 
33.  College  v.  Taylor,  P.   (1908)    140.     A 

8.  Phelps  V.  Robbins,  40  Conn.  250;  testator  sometimes  shows  inadvert- 
Thompson  v.  Quimby,  2  Bradf.  (N.  ence  in  altering  clauses  in  his  exe- 
Y. )  449;  Bryan  v.  Bigelow,  60  A.  266,  cuted  will  with  a  pen,  or  appending 
77  Conn.  604,  107  Am.  St.  Rep.  64.  later  written  directions  which  ought 
This  last  restriction  is,  however,  op-  to  have  been  expressed  by  a  nroperly 

executed  codicil  if  appended  at  all. 

347 


§    282  LAW  OF  WILLS.  [pAET    III. 

thorities,  both  before  and  since  the  late  act  (1  Vict.  c.  26)  appears 
to  be,  ithat  where  there  is  a  reference  in  a  duly  executed  testamen- 
tary instrument  to  another  testamentar)'  instrument,  by  such, 
terms  as  to  make  it  capable  of  identification,  it  is  necessarily  a 
subjeot  for  parol  evidence ;  and  that  when  the  parol  evidence  suffi- 
ciently proves  that,  in  the  existing  circumstances,  there  is  no  doubt 
as  to  the  instrmnent,  it  is  no  objection  to  it  that,  by  possibility, 
circumstances  might  have  existed  in  which  the  instrument  referred 
to  could  not  have  been  identified."  ^  But,  while  parol  evidence 
may  thus  identify,  it  should  not  be  admitted  to  contradict  the 
reference  thus  made  in  the  former  will ;  ^  nor  to  incorporate  where 
no  reference  is  made  at  all.^ 

In  general,  the  burden  of  establishing  the  existence  and  identity 
of  an  extraneous  paper  as  part  of  the  will  rests  upon  the  party 
who  seeks  to  get  such  paper  admitted.^ 

An  insufficiently  executed  testament,  or  any  other  extraneous 
paper,  made  subsequent  to  the  execution  of  the  will,  may  by  a  later 
instrument  which  is  properly  executed,  become  part  of  the  latter 
and  with  it  form  a  new  will  or  codicil.^ 

1.  Allen  V.  Maddock,  11  Moore  P.  Goods,  3  S.  &  T.  175.  And  see  Den- 
C.  427,  461 ;  1  Wms.  Exrs.  100,  citing  nis  v.  Holsapple,  148  Ind.  297.  62  Am. 
various  English  decisions  made  in  ac-  St.  Rep.  536,  46  L.  R.  A.  168,  47  N. 
cordance;  1  Sw.  &  Tr.  250,  508;  2  Sw.  E.  63. 

&  Tr.  478;   3  Sw.  &  Tr.  6.     And  see  3.  Watkins's  Goods,  L.  R.  1  P.  &  D. 

Daniels's  G<x)ds,  8   P.   D.   14;    (]895)  19  L.  R.  l  P.  &  D.  198. 

P.  66;  163  III.  144,  36  L.  R.  A.  112,  45  4.  Singleton    v.    Tomlinson,    3   App. 

N.  E.  211.  Cas.    404.      There   might  be   some   ex- 

2.  Sunderland,  Re,  L.  R.  1  P.  &  D.  traneous  paper  clearly  identified  by 
198.  the   will,   for    affecting   the   testamen- 

Reference    may    be    made    to    otlicr  tary  disposition  of  the  estate,  and  yet 

persons'  wills  or  other  instruments  in  not   necessarily,   nor   conveniently    re- 

so  general  a  manner,  as  by  way  of  ex-  corded  in  the  probate.     As  to  probate 

plaining  the  testator's  reasons  for  his  where    a    bulky    pamphlet    was    made 

disposition,  that  .such  extraneous  pa-  part  of  a  will,  sec   (1897)   P.  261. 
pers   could   not   fairly   be  pronounced  5.  Shaw  v.   Camp,   163   111.   144,   36 

any  part  of  the   will   in  controv  r.-;y.  L.  R.  A.  112,  45  N.  E.  211;    Skirner 

See  Myrick,  Prob.  205.     An  annulled  v.  Bible  Society,   92   Wis.   209,   65  N. 

will  thus  referre<l  to  need  not  be  em-  W.    1037;    Heath's   Goods,    (1892)    P. 

bodied   in  the  probate.     Ouchterloirg's  253. 

348 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    284 

§  283.  Reference  of  Will  to  a  Lost  or  Inaccessible  Will  or  Writ- 
ing. 

Where  a  will  is  lost  or  missing,  sot  the  testator's  death,  it  is  pre- 
sumed to  have  been  revoked  by  him  during  life ;  but  this  presump- 
tion may  be  overcome  by  proof  to  the  contrary.^  So,  too,  where 
one's  will  refers  to  a  memorandum  which  cannot  be  found  upon 
his  decease,  the  will  may  take  effect  without  it;  either  on  the  pre- 
sumption that  the  testator  destroyed  it  with  the  intention  of  re- 
voking, or  because  an  apparent  testamentary  disposition  is  not  to 
be  disappointed  because  other  dispositions  are  unknown  by  reason 
of  a  lost  paper.^  But  the  presumption  of  intended  revocation  and 
destruction  by  the  testator  being  overcome,  secondary  proof  of  con- 
tents may,  we  apprehend,  be  supplied.^  Where  inaccessible 
papers  are  referred  to,  the  court  deals  with  the  difficulty  as  it 
may,  while  sustaining  the  will.* 

§  284.  Will  may  be  written  on  Several  Sheets  incorporated  to- 
gether. 

A  will  may,  of  course,  be  written  on  several  sheets  of  paper  in- 
corporated together  in  sense  as  one  instrument.^  And,  unless  the 
local  statute  provides  differently,  the  will  is  well  signed  and  at- 
tested on  the  last  sheet  alone,  provided  the  execution  was  bona  fide 
and  meant  to  cover  the  whole.^ 

6.  Sehoul.  Exrs.  &  Admrs.  §  1084  9.  Schoul.  Exrs.  &  Admrs.  §  1084 
(Vol.  II).                                                       (Vol.  II). 

7.  Dickinson  v.  Stidolph,  11  C.  B.  1.  The  diflferent  parts  of  a  will  need 
N.  S.  341;  Wood  v.  Sawyer,  Phill.  not  be  physically  connected,  provided 
N.  C.  251.  they  are  connected  by  their   internal 

8.  See  as  to  probate  of  a  codicil  sense  or  by  a  coherence  and  adapta- 
without  the  missing  will,  where  the  tion  of  parts.  Wickoff's  Appeal,  15 
codicil  stood  independently  of  it.  Penn.  St.  281,  53  Am.  Dec.  597:  6S 
Greig,  Re,  lb.  R.  1  P.  &  D.  72 ;  Schoul.  N.  Y.  S.  632 ;  Swaim's  Will,  78  S.  E. 
Exrs.  &  Admrs.  §  1084   (Vol.  II).  72,  162  N.  C.  213    ("tacked  together 

As   to    comparing   papers   together,  in  the  mind  of  the  testator").     And 

in  such  cases,  to  ascertain  their  true  see   Field's   Will,   204   N.  Y.   448,   97 

interpretation,  see  Jordan  v.  Jordan,  N.  E.  881. 

€5  Ala.  301.  2.  See    3    Burr.    1773;      Marsh    v. 

349 


§    285  LAW   OF  WILLS.  [pART    III. 

The  presumption  is  'that  papers  bound  or  fastened  together, 
coherent  in  sense,  and  constituting  the  will  as  found  after  the 
testator's  death,  were  so  bound  or  fastened  and  constituted  the  will 
when  it  was  executed  and  attested.^ 

§  285.  Wills  Conditional  or  Contingent. 

Those  familiar  with  testamentary  causes  are  well  aware  that 
provisions  under  a  will  are  liable  to  turn  out  in  one  way  or  an- 
other, contrary  often  to  expectation,  according  to  conditions,  ex- 
press or  implied,  with  which  the  gift  is  found  coupled ;  and  that 
predecease  and  various  other  contingencies  may  cause  a  testamen- 
tary disposition  to  operate  quite  diiferently  from  what  the  testator 
himself  had  more  particularly  in  view.  Variation,  under  given 
circumstances,  may  be  the  result  of  law  in  one  case  and  of  the  tes- 
tator's own  prevision  in  another.  Wills,  therefore,  as  to  the  de- 
tails of  testamentary  disposition,  may  operate  in  effect  subject  to 
conditions  or  contingencies  in  every  variety.  But  now  arises  tJie 
question  as  to  subjecting  the  will  itself,  the  disposition  as  a  whole, 
to  some  condition  or  contingency,  which  shall  control  or  prevent 
its  operation  altogether,  so  that  the  testator  may  have  made  the 
will  understanding  that  he  might  die  testate  or  intestate. 

Wills  may  be  conditional,  that  is  to  say,  made  dependent  upon 
the  happening  of  some  specified  contingency  for  testamentary 
operation.  If  the  condition  is  of  partial  application  simply,  the 
will  should  be  admitted  tO'  probate,  and  the  effect  of  the  condition 

Marsh,  1  Sw.  &  Tr.  528;   Dea.  &  Sw.  teenth  sheet  had  been  substituted  for 

7;   Jones  v.  Habersham,  63  Ga.   146;  it.      The    several    sheets    of    the    will 

Barnewell   v.    Murrell,    108   Ala.    366,  were   foaind  tied   together   with   tape. 

18   So.   831;    chapters  post  as  to  sig-  It  was  held  that  these  facts  did  not 

nature  and  attestation.  overcome    the    presimiption    that    the 

3.  Rees  v.  Rees,  L.  R.  3  P.  &  D.  84.  will  had  been  executed  as  thus  bound 

Here   a   will    had    been    engrossed   on  together.      And   see   Palmer   v.   Owen, 

fifteen  brief  sheets  of  paper  consecu-  229  111.   115,  82  N.  E.  275;    112  Mo. 

tively  numbered,   with  others   added.  210,  20  S.  W.  456;    Lewis  v.  Lewis, 

On  the  testator's  death,  it  was  found  P.    D.    (1908)     (papers    not    mechan- 

tliat    the    original    fourtli    sheet    had  ically   fastened,   but  held   together  ia 

Ix'on  removed,  and  placed  loose  in  his  some  way,  upheld  as  a  will), 
desk,    and    that    tlie    original    seven- 

350 


CHAP.    1.]  WHAT  CONSTITUTES  A  WILL,.  §    286 

upon  a  particular  devise  or  legacy  treated  as  matter  of  construc- 
tion afterwards.  But  if  the  condition  is  one  that  strikes  into  the 
essence  of  the  whole  will,  aifeeting  it5  status  for  probate  and  a 
valid  operation,  the  main  point  to  determine  is,  whether  so  sweep- 
ing an  effect  was  really  intended.  For  one  may  state  a  contin- 
gency that  he  has  in  mind  as  the  inducement  for  making  his  will, 
by  way  of  narrative,  so  to  speak,  or  he  may,  on  the  contrary^  state 
it  as  the  condition  on  which  the  will  is  to  become  operative.  The 
question  is,  which  he  intended ;  and  the  inclination,  in  case  of 
doubt,  should,  we  hold,  be  to  the  former  and  less  injurious  and  im- 
politic conclusion. 

§  286.  The  Same  Subject. 

There  seems  no  reason  upon  principle  why  an  instrument  can- 
not be  made  which  shall  take  effect  as  a  will,  on  the  happening  of 
a  particular  contingency  named  in  it;  not  the  usual  simple  con- 
tingency of  the  testator's  death,  but  his  death  after  a  certain  man- 
ner,  or  at  or  before  a  particular  date,  or  during  some  special  sea- 
son of  risk,  or  in  case  he  shall  or  shall  not  leave  such  an  estate  or 
such  persons  surviving  him.  But  how  rarely  is  it  to  be  supposed 
that  a  testator  means  that  the  will  which  he  leaves  at  his  death 
tmcancelled  was  only  meant  to  operate  if  he  died  at  some  par- 
ticular time  or  by  some  stated  mode.  And  as  for  conditions  which 
have  the  amount  of  estate  or  the  survivorship  of  certain  other  per- 
sons in  view,  how  natural  is  it  that  these  should  have  been  em- 
braced within  the  scope  of  disposition  under  a  will  which  of  itself 
disposes. 

Admitting,  nevertheless,  that  a  will  may  be  drawn  up  and 
executed  to  operate  only  as  such  upon  a  stated  contingency,  "  there 
are  two  points,"  says  Hoar,  J.,  "  to  be  settled  before  a  will  can 
be  rejected  from  probate  on  the  ground  that  it  is  a  conditional  will, 
and  that  the  condition  has  failed:  (1)  wheLher  the  intention  of  the 
testator  is  to  make  tlie  validity  of  the  will  dependent  on  the  condi- 
tion, or  merely  to  state  the  circumstances  which  lead  him  to  make 
a  testamentarv'  provision;  (2)  if  the  lang-uage  clearly  imports  a 
condition,  whether  it  applies  to  and  affects  the  whole  will,  or  only 

351 


§    287  LAW  OF  WILLS.  [part    IIL 

some  parts  of  it."  *     For  a  contingent  part  of  a  will,  we    should 
obser^-e,  is  not  per  se  a  contingent  will. 

§  287.  The  Same  Subject:  English  Cases. 

Of  English  cases  decided  before  the  statute  1  Vict.  c.  26  went 
into  effect,  a  brief  citation  is  sufficient.  But  we  may  observe  that 
Lord  Hardwicke  set  the  early  example  of  treating  a  will  as  void 
through  the  failure  of  a  contingency  upon  which  it  appeared  to 
depend;  ^  while  the  later  decisions  showed  a  more  cautious  inclina- 
tion.® Under  the  modern  Wills  Act,  however,  extrinsic  evidence 
as  to  the  testator's  intention  and  his  adherence  to  the  will  despite 
the  condition  is  less  easily  applied  than  formerly;  the  court  con- 
fining its  attention  rather  to  the  language  used  in  a  written  instru- 
ment executed  witli  due  solemnities.  Hence,  a  will  expressed  to 
take  effect  if  the  testator  should  die  on  a  stated  voyage,  or  before 
his  return  from  a  particular  journey,  has  been  held  inoperative; 
the  testator  having  returned  in  safety,  and  died  long  after  under 
circumstances  quite  different,  so  that  the  contingency  stated  in  the 
will  never  happened.^  And  here,  as  in  the  case  before  Lord 
Hardwicke,  the  court  ruled  out  evidence  that  notwithstanding  his 
return,  the  testator  had  actually  recognized  the  will  as  valid  until 
he  died ;  because  this  would  be  to  set  up  the  will  by  parol,  while 
under  the  statute  a  striot  republication  became  indispensable,  as 
in  other  wills  once  ceasing  to  operate.^ 

4.  Hoar,  J.,  in  Damon  v.  Damon,  6.  Barton  v.  CoUingwood.  4  Hagg. 
8  Allen,  192.  See  also  Lindsay,  Ex  176;  Bateman  v.  Pennington.  3  Moore, 
parte,  2  Bradf.  Sur.   (N.  Y.)   204.  P.  C.  223;  Strauss  v.  Schmidt,  3  Pliil- 

5.  Parsons  v.  Lanoe,  1  Ves.  Sen.  lim.  209;  Forbes  v.  Gordon,  3  Phillim. 
190,  s.  c,  Ambl.  557.  This  case  was  625;  2  Phillim.  294;  1  Wms.  Exrs.  189. 
decided,  we  should  observe,  as  involv-  These  decisions  of  the  ecclesiastical 
ing  a  will  of  real  estate,  to  which  the  courts  relate  to  wills  of  personalty, 
Statute  of  Frauds  properly  applied,  which  were  formerly  good  without  a 
rendering  due  formalities  of  execution  solemn   execution. 

necessary.     The  report  of  this  case  is  7.  Winn's  Goods,  2  Sw.  Sc  Tr.  147; 

fragmentary  in  eacli  report,  and  it  is  Roberts  v.  Roberts,  2  Sw.  &  Tr.  337. 

best  to  take  the  two  together,  that  in  8.  lb.;    Parsons    v.    Lanoe,    1    Ves. 

Ambler   being   preferable.     See   Hoar,  Sen.  190;  8.  c,  Ambl.  557. 
J.,  in  8  Allen,  195. 

352 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    287 

But  where  a  will,  written  as  though  conditional  upon  a  long 
journey,  is  re^executed  and  duly  witnessed  after  the  testator's  safe 
return,  the  condition  ceases,  and  the  will  may  fully  operate  by 
remaining  uncancelled ;  and  such,  too,  is  the  practical  consequence 
where  the  instrument  was  properly  executed  for  the  first  time 
when  the  journey  was  over.^  In  several  of  the  later  cases,  more- 
ever,  the  court  liberally  inclines  to  admit  such  wills  to  probate, 
where  it  may ;  either  on  the  ground  that  the  words  claimed  as  im- 
porting a  condition  merely  explained  the  inducement  to  the  will, 
or  else  in  order  that  the  force  and  effect  of  a  doubtful  condition* 
may  be  determined  by  construction  afterwards.  As  where  a  will 
made  in  Africa  commenced :  "  In  the  event  of  my  death  whilst 
serving  in  this  horrid  climate,  or  any  accident  happening  to  me."  ^ 
Or  where  the  testator  directed  that  his  will  was  to  take  effect  only 
in  the  event  of  his  son  dying  under  itwenty-one  years  of  age,  and 
his  daughter  dying  under  that  age  and  unmarried ;  and  then  wont 
on  to  leave  various  legacies  and  appointed  an  executor.^  Or  where 
a  will  began :  "  In  case  of  any  fatal  accident  happening  to  me, 
being  about  to  travel  by  railway,  I  hereby  leave,"  etc.^ 

9.  Cawthorn's  Goods,  3  Sw.  &  Tr.  Goods,  L.  R.  2  P.  &  D.  23,  with  the 

417.     On  the  other  hand,  the  due  exe-  eases    cited    therein.      Here    a    paper 

cution  of  a  new  and  inconsistent  will  made  use  of  this  language:      "Being 

would  supersede  any  such  contingent  obliged  to  leave  England  to  join  my 

will.      See    Ward's    Goods,    4    Hagg.  regiment  in  China,  I  leave  this  paper 

179.  containing   my   wishes.      Should    any- 

1.  Thome's  Goods,  4  S.  &  T.  36.  thing    unfortunately    happen    to    me 

2.  Ck)oper's  Goods,  Dea.  &  Sw.  9.  whilst  abroad,  I  wish  everything  that 
If  the  event  is  still  in  suspense  (as  I  may  be  in  possession  of  at  that 
seems  to  have  been  the  case  here,  time,  or  anything  appertaining  to  me 
though  the  report  is  not  clear),  the  hereafter,  to  be  divided,"  etc.  The 
will  should  be  admitted  to  probate.  testator  returned  from  China,  and 
1  Jarm.  Wills,  17.  afterwards    died.      Said    Lord    Penz 

3.  Dobson's  Goods,  L.  R.  1  P.  &  D.  ance:  "The  court  is  bound  to  hold 
88.  Here  the  operation  of  the  will  is  that  this  will  is  conditional.  Look- 
not  expressly  limited  to  a  ecrtain  ing  at  the  cases  already  decided,  and 
time.  the  principles  therein  laid  down  as  to 

Even  the  latest  English  cases  run  contingent  wills,  I  find  a  distinction 
very  close  in  point  of  construction,  as  drawn.  It  is  the  common  feature  of 
may   be   seen   by   comparing   Porter's      wills  in  respect  of  which  this  sort  of 


23 


6'06 


§  288 


LAW  OF  WILLS. 


[PAET    III. 


§  288.  The  Same  Subject :  American  Cases. 

In  this  country,  it  is  generally  conceded  that  a  statute  execution 
by  means  of  signature  and  attestation  leaves  the  validity  of  the 
instrument  to  be  so  tested  by  proof  of  due  execution  and  its  con- 
tents, tbat  parol  evidence  of  subsequent  adherence  to  the  will  can- 
not aid  it  against  a  clearly  expressed  contingency  upon  which  its 


question  arises,  that  the  testator 
therein  refers  to  a  possible  impending 
calamity  in  connection  with  his  will; 
and  the  question  arises,  whether  he 
intends  to  limit  the  operation  of  the 
will  to  the  time  during  which  such 
calamity  is  imminent.  If  the  lan- 
guage used  by  him  can  by  any  rea- 
sonable interpretation  be  construed  to 
mean  that  he  refers  to  the  calamity 
and  the  period  of  time  during  which 
it  may  happen,  as  the  reason  for 
making  a  will,  then  the  will  is  not 
conditional;  but  if  he  refers  to  the 
calamity  or  the  possible  occurrence  of 
some  event  as  a  reason  for  a  certain 
disposition  of  his  property,  and  mixes 
up  the  disposition  of  the  property 
with  the  event  so  that  one  is  depend- 
ent on  the  other,  then  the  court  must 
hold  the  will  to  be  conditional."  The 
former  English  cases  are  here  re- 
viewed and  distinguished.  And  see 
Robinson's  Goods,  L.  R.  2  P.  &  D.  171 ; 
Mari:;;"s  Goods,  L.  R.  1  P.  &  D.  380. 
Nevertheless,  to  take  such  will  as 
expressed  on  their  face,  such  a  dis- 
tinction appears  wire-drawn.  For  in 
a  still  later  decision  the  will  was  de- 
cided not  to  be  contingent  upon  death, 
though  expressed  as  follows:  "On 
leaving  this  station  for  T.  and  M.,  in 
case  of  my  dfath  on  tlio  way,  know  all 
men  this  is  a  memorandum  of  my 
last  will  nnd  testament."  Mayd's 
Goods,  fi   P.   D.    17.     Say.s  Sir  James 

3 


Hannen:  "The  meaning  of  general 
phrases  of  this  kind  is,  '  knowing  the 
uncertainty  of  human  life,  and  being, 
about  to  enter  on  something  particu- 
larly dangerous,  I  make  this  my 
will ;  '  and  the  court  ought  not  to 
scrutinize  such  expressions  with  too 
great  nicety."  lb.  See  Halford  v. 
Halford,  (1897)  P.  36.  Particularly 
in  the  case  of  those  in  the  military  or 
naval  service,  whose  informal  wills  re- 
ceive high  favor  (§§  366-368)  and 
who  are  liable  to  sudden  peril,  lan- 
guage expressive  of  special  apprehen- 
sion as  inducement  to  a  will,  is  not 
readily  construed  into  a  positive  con- 
dition. See  Spratt's  Goods,  (1897) 
P.  28,  and  cases  cited.  In  Vines's  Es- 
tate, P.  D.  (1910)  147,  where  the 
principle  of  conditional  wills  is  fur- 
ther discussed,  and  the  wording  of 
such  an  instrument  is  made  the  cri- 
terion for  a  decision,  the  will  was  ad- 
mitted to  probate. 

It  is  generally  found  that  wills  of 
this  cliaracter  employ  language  care- 
less and  inartificial,  and  that  they  are 
not  prepared  under  competent  pro- 
fessional guidance.  All  the  more, 
then,  should  courts  incline  against 
giving  to  the  expressed  peril  the  full 
force  of  a  condition,  in  case  of  legal 
doubt.  By  discouraging  contingent 
wills  in  construction,  they  are  most 
likely  to  disappear;  and  if  so,  all  th& 
better  for  our  jurisdrudence. 


54 


CHAP.    I.]  WHAT  CONSTITUTES  A  WILL.  §    288 

effect  is  declared  dependent.  At  the  same  time,  where  the  words- 
do  not  clearly  express  that  the  entire  instrument  shall  fail  or  take 
effect  upon  a  particular  event,  a  probate  is  favored,  either  upon, 
the  theory  that  there  was  no  such  fundamental  contingency,  or  so 
as  to  leave  a  court  of  construction  to  determine  how  far  the  pro- 
visions of  the  will,  the  devises  and  bequests,  were  affected  by  it.'* 
Where  a  will  is  so  expressed  as  to  depend  upon  a  contingency 
which  does  not  happen,  a  later  re-execution  or  republication  is 
needful,  as  under  the  policy  of  English  legislation,  in  order  to  give 
the  will  new  validity.^ 

There  are  several  American  cases  in  which  (tbese  principles  have 
been  liberally  applied,  so  as  to  admit  to  probate  wills  which,  if 
rigidly  interpreted,  might  be  thought  conditional.  Thus,  in  Massa- 
chusetts, where  a  testator  commenced  his  will  as  follows :  "  I,  A. 
B.,  being  about  to  go  to  Cuba,  and  knowing  the  danger  of  voyages, 
do  make  this  as  my  last  will  and  testament,  in  manner  and  form 
following :  First,  if  by  casualty  or  otherwise  I  should  lose  my  life 
during  this  voyage,  I  give  and  bequeath  to  my  wife,"  etc.^     Again, 

4.  French  v.  French,  14  W.  Va.  458,  bate  judge  is  justified   in  a   sentence 

and  cases  cited;  Damon  v.  Damon,  8  of  probate  on  the  formal  proof,  so  as 

Allen,     192;     Lindsay,    Ex    parte,    2  to  leave  the  determination  of  its  con- 

Bradf.  Sur.   (N.  Y.)   204.    This  exclu-  ditional    nature    for    subsequent    con- 

sion  of  parol   evidence  of  S'Ubsequent  struction    and    interpretation."      This 

recognition      or      disaffirmance      may  is   a  very   just  and   sensible  view   to 

sometimes  be  favorable  to  the  will.  take  of  the  subject. 

In    Lindsay,    Ex   parte,   supra,   the  5.  See   Dougherty   v.   Dougherty,   4 

court   observes   as   follows:      "If   the  Met.    (Ky. )    25,   where  this   principle 

will   be   admitted   to  probate,   it  will  is  more  doubtfully  expressed  than   it 

still  remain  a  matter  of  construction  need   have  been;    also   Part  IV.   c.   3, 

whether    the   bequests    are    made    de-  post. 

pendent  upon  a  condition  or  contin-  6.  Damon  v.  Damon,   8  Allen,   192. 

gency.     If  it  be  denied  probate,  that  This  same  will  gave  other   independ- 

question   cannot  be  brought  before   a  ent  bequests,  and  spoke  of  the  'n>tru- 

court   of  construction.     If,   therefore,  ment   as  the  testator's  last  will   and 

in  a  case  of  this  kind  there  be  room  testament.     The  effect  of  tlie  contin- 

for   reasonable   doubt   as   to   the   con-  gent     expression,    in    this     carelessly 

tingent  character  of  the   instrument,  drawn  will,  upon  the  first  clause  as 

if  there  are  not  clear  and  unquestion-  contrasted    with    the   later    ones,    the 

able   terms   of   contingency,   the   pro-  court  did  not  consider;   that  being  a 

355 


§    289  LAW   OF   WILLS.  [pART  III. 

in  ]^ew  York,  where  the  will  began:  "According  to  my  present  in- 
'tention,  should  anything  happen  to  me  before  I  reach  my  friends 
in  St.  Louis,  I  wish  to  make  a  correct  disposal  of  the  three  hun- 
dred dollars  now  in  the  hands  of  H.,"  etc.^  And  once  more  by  a 
very  free  interpretation,  in  a  West  Virginia  case,  the  following 
instnmient :  "  Let  all  men  know  hereby,  if  I  get  drowned  this 
morning,  March  7,  1872,  (that  I  bequeath  all  my  property,  per- 
sonal and  real,  to  my  beloved  wife  F."^ 

§  289.  The  Same  Subject. 

On  the  other  hand,  several  American  cases  have  treated  a  will 
of  dubious  phrase  as  contingent.  Thus,  in  Kentucky,  where  a 
will  devised  real  estate  after  this  form :  "As  I  intend  starting  in 
a  few  days  to  ithe  State  of  Missouri,  and  should  anything  happen 
that  I  should  not  return  alive,  my  wish  is,"  etc.^  And  in  Missouri, 
where,  very  curiously,  a  will  couched  in  nearly  the  same  language, 
began :  "  I  start  this  day  for  Kentucky,"  etc.^  In  each  instance, 
the  testator  was  fortunate  enough  ito  go  to  and  fro  between  these 
two  States  alive,  and  his  will  failed  in  consequence.  More  recently, 
in  Pennsylvania,  a  testamentary  paper,  badly  worded  and  spelled, 
and  awkwardly  expressed,  was  refused  probate,  where  the  direc- 
tion was,  "  If  I  should  not  get  back,  do  as  I  say,"  and  the  testator, 

matter  of  later  construction  not  in-  death,  no  presumption  against  the 
terfering  with  a  probate.  will  arises  in  consequence.     French  v. 

7.  Lindsay,  Ex  parte,  2  Bradf.  Sur.      French,  14  W.  Va.  458. 

(N.  Y.)   204.  9.  Dougherty  v.  Dougherty,  4  Met. 

8.  French  V.  French,  14  W.  Va.  458;  (Ky.)  25.  See  also  Todd's  Will,  2 
Green,  Prcs.,  dissenting.  In  the  opin-  W.  &.  S.  145;  Broadus  v.  Rosson,  3 
ions  here  pronounced,  the  later  prece-  Leigh,  12;  Wagner  v.  M'Donald,  2 
dents,  English  and  American,  are  Har.  &  J.  346;  French  v.  French,  14 
quite  exhaustively  cited  and  com-  W.  Va.  458,  and  cases  cited;  Eaton  v. 
pared.  See  also  Kelleher  v.  Kernan,  Brown,  24  S.  Ct.  487,  193  U.  S.  411, 
60  Md.  440;  Barton's  Estate,  52  Cal.  48  L.  Ed.  730;  Redhead's  Estate,  35 
538.  So.   161,  83  Miss.  141;    Forgner's  Es- 

Siich   will    being   absolute   and    not  tate,   216  Ponn.   331;    88   S.   W.   1113 

contingent,  and  the  law  having  made  (Tex.)  ;   De  Sauzay  v.  De  Sauzay,  63 

a  change  in  heirship  between  the  date  So.  273. 

of  the  will  and  that  of  the  testator's  1.  Robnett  v.  Ashlock,  49  Mo.   171. 

35G 


CHAP.  I.]  WHAT   CONSTITUTES   A  WILL.  §    290 

as  the  brief  showed,  became  ill  on  his  journey,  was  brought  back, 
in  fact,  and  died  at  home  several  days  after.^ 

§  290.  The  Same  Subject:  Bearing  of  Extrinsic  Evidence  in  Such 
Cases. 

This  doctrine  of  conditional  or  contingent  wills  is,  on  the  whole, 
so  rarely  invoked,  that  the  bearing  of  extrinsic  evidence  in  such 
cases  has  not  been  fully  unfolded  in  the  decisions.  Where  a  statute 
mode  of  execution  or  re-execution  is  strictly  prescribed,  the  inten- 
tion of  the  testator  to  make  and  finally  leave  at  his  death  a  condi- 
tional will,  must  appear  very  clearly  on  the  face  of  the  will.  Care- 
less and  inartificial  expressions,  however,  are  to  be  treated  with 
ample  allowance,  technical  informalities  disregarded,  traces  of  the 
testator's  intention  sought  out  in  every  part  of  the  instrument,  and 
the  whole  carefully  weighed  together. 

But  as  to  evidence  outside  the  instrument,  and  particularly  mere 
declarations  and  other  oral  proof,  while,  doubtless,  such  testimony 
is  inadmissible  to  control  the  construction  of  the  will,  or  contra- 
dict its  clear  expression  of  intent,  it  may  still  be  asked  whether  the 
court  is  not  at  liberty  to  go  outside  in  case  of  inevitable  doubt,  to 
help  resolve  an  ambiguity.  Authority  is  not  explicit  on  this  point; 
nor  perhaps  can  so  extreme  a  case  be  found  in  our  modem  prac- 
tice; but  certainly  such  oral  proof  is  not  favored,  and  the  court 
prefers  to  put  its  own  construction  upon  the  language  contained 
in  the  will.  Yet  it  is  held,  and  with  goo'd  reason,  that  the  sur- 
rounding circumstances  of  the  execution  may  be  shown  to  aid  in 
ascertaining  the  true  interpretation  of  the  will.  Such  proof  may 
aid  in  determining,  for  instance,  whether  the  testator  merely  had 
a  particular  peril  or  exposure  in  view  as  inducing  him  to  make  his 
will,  or,  what  is  more  improbable,  meant  that  its  effect  should  de- 
pend wholly  upon  death  from  that  peril  oir  exposure.^     And  even 

2.  Morrow's  Appeal,  116  Penn.  St.  ful  expressions  of  a  will  is  here  dis- 
440,  2  Am.  St.  Rep.  616.  cussed  at  much  length.     From  the  d:s- 

3.  French  v.  French,  14  W.  Va.  460.  senting  opinion  one  would  infer  that 
This  subject  of  admitting  extrinsic  considerable  parol  evidence.  not 
evidence  to  aid  in  resolving  the  doubt-  legally     admissible,    was    introduced. 

357 


§    292  LAW   OF  WILLS.  [pAET  III. 

conceding,  as  we  must,  that  onr  Wills  Acts  exclude  all  parol  evi- 
dence of  recognition,  adherence  to  the  will,  or  ratification  after  the 
peril  was  past  (since  a  republication  is  required),  we  see  no  reason 
whj  the  very  circumstance  that  the  will  in  question  has  never  been 
cancelled,  but  is  produced  from  proper  custody  on  the  testator's 
death  and  presented  for  probate,  may  not  be  adduced  in  favor  of 
its  intended  validity;  just  as  that  circumstance  carries  weight, 
where  insanity  with  lucid  intervals  or  coercion  is  set  up  against 
a  will.  For,  after  all,  conditional  wills  are  of  so  peculiar  a  de- 
scription, and  operate  usually  so  disastrously,  not  to  say  sense- 
lessly, that  any  doubt  should  be  resolved  in  favor  of  absolute  char- 
acter and  a  probate. 

§  291.  Wills  may  take  Effect  in  the  Alternative. 

Wills  may  be  expressed  so  as  to  take  effect  in  the  alternative 
with  reference  to  a  stated  contingency.  As  if  a  testator  should 
execute  one  will,  and  afterwards  a  second  will ;  and  then  by  a  third 
will  or  codicil  declare  that  the  first  will  shall  be  his  last  will  if  he 
dies  before  a  given  date,  othewise  the  second  will  shall  be  his  last 
will." 

§  292.  Contingency  or  Condition  not  to  be  supplied  by  Parol 
Proof. 

The  contingent  or  conditional  wills  we  have  described  involve 
the  construction  of  an  instrument  whose  conditional  import  ap- 
pears upon  its  face.  A  will  duly  executed  amimo  testandi  and  in 
form  absolute  is  not  to  be  shown  contingent  or  conditional  and  in- 
operative by  extrinsic  proof. ^ 

But  the  rest  of  the  court,  while  sus-  admissible   as    showing   his    condition 

taining  the  will,  contend  tlint  no  tes-  of  mind  when  the  will  was  made, 

limony    inadmissible    or    loosely     ad-  4.  Hamilton's  Estate,  74  Penn.  St. 

mitted  afTected  their  conclusion;   and  69.     The  point  of  contingency  should 

the  report  of  the  case  confirms,  on  the  be   definitely    stated   in    such    a  casie, 

wliole,  this  impression.     And  see  Kel-  and    the    alternate    instruments    well 

leher  v.   Kernan,   60  Md.   440,  where  identified. 

parol    proof    of    the   testator's    inten-  5.  Scwell   v.   SlinglufT,  57  Md.  537. 

tion   to   provide   for   his   daughter   in  In  this  novel  ease  a  will  was  contested 

anticipritiori   of  the  journey   was   held  on  the  ground   that  the  testatrix  had 


CHAP.  I.]  WHAT   CONSTITUTES   A  WILL.  §    294 

§  293.  Operation  of  Will  left  to  the  Discretion  of  Another. 

A  singular  kind  of  testamentary  condition  has  been  sustained  in 
a  modern  English  case.  A  testator  wrote  a  codicil  to  his  will, 
which  concluded  as  follows :  "  I  give  my  wife  the  option  of  adding 
this  codicil  to  my  will  or  not,  as  she  may  think  proper  or  neces- 
sary." The  court  dc<;ided  that  a  condition  or  option  like  this  was 
not  illegal  nor  invalid ;  at  the  same  time  conceding  that  one  can 
neither  confide  to  another  the  right  to  make  a  will  for  him,  nor 
authorize  any  person  to  revoke  his  will  after  his  death.^  And  in 
the  pireseiDt  instance,  the  validity  of  the  codicil  being  treated  as  con- 
ditional on  the  assent  of  the  wife,  and  the  wife  dissenting,  its  pro- 
bate was  refused.^ 

§  294.  Papers  which  cannot  be  probated  as  Wills;  Wills  merely 
appointing  a  Guardian;  appointing  to  a  Situation;  ex- 
cluding from  Inheritance,  etc. 
There  are  documents  designed  for  posthumous  effect,  which  can- 
not be  probated  as  wills  for  want  of  the  character  essential  to  such 
dispositions  in  order  to  give  the  court  jurisdiction.     Thus  a  paper 

intended  it  to  be  used  and  probated  the  question  whether  his  will  shall 
as  her  will  only  in  the  event  of  lier  fundamentally  operate,  that  is,  be- 
dying  without  issue.  The  will  ex  come  a  will  at  all  or  not,  sliall  de- 
pressed no  qualifieation  of  the  kind;  pend  upon  something  to  happen  after 
and  it  was  properly  held  that  parol  his  death.  Such  a  proposition,  we 
evidence  was  inadmissible  to  show  submit,  is  open  to  grave  dispute;  and 
such  an  intent.  if  titles  by  succession  may  legally  be 

6.  That  a  testator  cannot  delegate  hung  up  thus  at  the  caprice  of  a  per- 
to  another  the  power  to  revoke  his  son  who  chooses  to  leave  it  for  years 
will  after  death,  see  Revocation,  post ;  or  forever  uncertain  whether  he  dies 
1  Robert.  661;  North,  Re,  6  Jur.  554.  testate    or    intestate,    it    is    time    for 

7.  Smith's  Goods,  L.  R.  1  P.  &  D.  legislation  to  prevent  intolerable  mis- 
717.  What  would  have  been  the  effect  chief,  and  at  all  events  protect  cred- 
of  such  a  codicil  had  the  wife  died  itors  of  the  estate.  The  least  a  court 
before  her  husband,  or  too  soon  after  can  do  in  such  a  case  is  to  promptly 
to  declare  her  option  at  all,  the  court  decree  probate  of  the  will  after  the 
did  not  consider.  But  the  learned  testator's  death  without  waiting  for 
judge  took  the  ground  that  there  is  any  later  contingency  to  be  deter- 
nothing  in  the  law  or  common  sense  mined,  and  leave  its  further  opera- 
to  prevent  a  testator  from  saying  that  tion  to  a  court  of  construction. 

359 


§    295  LAW  OF  WILLS.  [pART  III. 

executed  as  a  last  will,  which  does  no  more  than  name  a  guardian 
for  one's  children,  and  neither  disposes  of  property  nor  nominates 
an  executor,  is  excluded  from  probate.^  But  in  various  American 
States,  where  legislation  confers  upon  the  probate  court  original 
jurisdiction  in  the  appointment  of  guardians  as  well  as  execujtors, 
and  makes  special  mention  of  testamentary  guardians,  besides,  a 
different  rule  may  possibly  prevail.^ 

Xor  is  the  mere  written  appointment  to  a  situation  after  one's 
death  a  testamentary  paper,  though  duly  executed  and  witnessed.^ 
'Nor  is  a  mere  written  direction  tx>  have  the  body  cremated.^  ]^or 
is  an  instrument  regarding  simply  the  adoption  of  a  ehild.^^ 

In  short,  a  will  to  operate  as  such  must,  as  a  rule,  make  or  atr 
tempt  a  total  or  partial  disposition  of  property,  to  take  effect  at 
the  testator's  death,  or  at  least,  must  name  an  executor;  and  it  is 
not  enough  that  the  instrument  purports  to  be  a  will  and  is  ex- 
ecuted with  all  the  testamentary  formalities,  when  it  accomplishes 
nothing  of  a  testamentary  character.^ 

§  295.  The  Same  Subject:    Wills  which  merely  dispose  of  Real 
Estate. 

The  old  English  rule  founded  ecclesiastical  jurisdiction  essen- 

8.  Morton's  Goods,  3  Sw.  Tr.  422.  that  this   was   no  will;    that  the  de- 

9    Concerning    testamentary    guar-  ceased   died   intestate,   and   that   con- 

dianship,   etc.,  see   Schoul.   Dom.   Rel.  sequently    this    son    was    entitled    to 

§§  287,  290.     And  see  Meyer,  Re,  131  share  in  the  distribution.     Coffman  v. 

N.  Y.  S.  27   (probated).  Coffman.  85  Va.  459,  17  St.  Rep.  69, 

1.  Thorncroft  v.  Lashmar,  2  Sw.  &  2  L.  A.  R.  848,  8  S.  E.  672. 

Tr.  479.  As  to  a  peculiar  paper  known  as  a 

2.  Meade's  Estate,  118  Cal.  428,  62  "nomination  paper,"  admitted  as 
Am.  St.  Rep.  244,  50  P.  541.  testamentary,  see  Baxter's  Goods,  P. 

2a.  Chehak    v.    Battles,    133    Iowa,  (1903)      12.       And    see    Seymour    v. 

107,  110  N.  W.  330.  Sanford.  86  A.  7,  86  Conn.  516  (letter 

3.  Cf.  §§  297,  298.  In  a  curious  to  a  beneficiary)  ;  Van  Ness's  Will, 
Virginia  case  a  man  made  a  will,  so  139  N.  Y.  S.  485  (a  release)  ;  Spen- 
called,  which  purported  simply  to  ex-  cer  v.  Spencer,  79  S.  E.  291,  163  N. 
elude  a  certain  son,  for  reasons  C.  83;  Thompson  v.  Pew,  102  N.  E. 
stated,  from  participating  in  his  es-  122,  214  Mass.  520  (power  of  ap- 
tat<*   at  his  death,   and   yet  made  no  pointment). 

diBposition  of  property.     It  was  held 

3G0 


CHAP.  I.]  WHAT   CONSTITUTES  A  WILL.  §    296 

tiallj  upon  sucli  testamentary  acts  as  affected  personal  property. 
Hence  it  has  been  ruled  in  England  in  times  past  that  a  will  which 
disposes  of  real  estate  alone  cannot  upon  any  pretext  be  admitted 
to  probate.^  But  the  later  tendency  of  legislation  in  that  coimtry 
is  to  a  more  uniform  system  of  probate,  whether  the  disposition 
affects  lands  or  any  other  species  of  property ;  while  in  the  United 
States,  the  policy  is  to  require  a  probate  of  all  wills,  whether  re- 
lating to  realty  or  personalty,  or  both  (together.^ 

But  a  will  which  relates  simply  to  the  disposition  of  foreign  real 
estate  should  be  refused  a  domestic  probate.^ 

§  296.  The  Same  Subject:    Writings  which  merely  revoke. 

So,  too,  English  courts  have  hesitated  as  to  admitting  papers  to 
probate  as  testamentary  which  do  no  more  than  manifest  the  in- 
tention of  revoking  a  regular  will  or  codicil.  Lord  Penzance  in 
two  recent  cases  owned  the  delicacy  of  a  distinction  ;  but  concluded, 
that  while  one  duly  signed  and  attested  memorandum  which  did 
something  more  than  revoke  a  will  might  be  deemed  a  will  or 
codicil,  another  similarly  prepared  and  executed,  which,  at  the 
foot  of  a  will,  said,  "  This  will  was  cancelled  this  day,"  could  not 
be  admitted  to  probate.^  Yet  a  separate  instrument,  duly  signed 
and  attested,  which  declares  one's  intent  of  revoking  a  former  will, 
OT  all  former  ones,  and  that  his  estate  shall  be  settled  according  to 

4.  Drummond's  Goods,  2  Sw.  &  Tr.  Act  20  and  21  Vict.  c.  77,  §  64; 
11;  Barden's  Goods,  L.  R.  1  P.  &  D.  Shumway  v.  Holbrook,  1  Pick.  114,  11 
335.  Even  though  the  instrument  Am.  Dec.  153 ;  Wilkinson  v.  Leland, 
should  give  directions  for  a  sale  of  2  Pet.  655,  7  L.  Ed.  552;  local  stat- 
part  of  the  estate  and  tlie  payment  of  utes. 

legacies  out  of  the  proceeds,  probate  6.  Tamplin's  Goods,    (1894)    P.   39. 

must  be  refused.     Booties  Goods,  L.  7.  Eraser's  Goods,  L.  R.  2  P.  &  D. 

R.  3  P.  &  D.   177.     It  cannot  be  de-  40.     Cf.  Hicks's  Goods,  L.  R.  1  P.  & 

nied   that    a   will    which    disposes    of  D.      683,     where     the     memorandum 

land   alone   is   testamentary,   whether  which  satisfied  said  further  "  and  as 

one   court   or  another  takes   jurisdic-  yet    I    have    made   no   other    [will]." 

tion  of  it.  These  cases  construe  the  20tli  section 

5.  Schoul.   Exrs.  &  Admrs.   §   1059  of  the  Wills  Act.     See  post,  Part  IV. 
(Vol.   II);    1   Wms.   Exrs.   341,   388;  as  to  revocation. 

361 


§    298  LAW   OF   WILLS.  [pAET  III. 

law,  is  undoubtedly  a  will  and  should  be  admitted  to  probate  as 
sucJl^ 

§  297.  Wills  Good  which  simply  nominate  an  Executor;  Wills 
without  an  Executor. 

But  a  will  which  simply  nominates  an  executor,  without  giving 
bim  a  legacy  or  making  any  direct  disposition  of  the  property  is 
a  good  one,  and  entitled  as  such  to  probate.®  And  if  the  nomina- 
tion constitutes  a  will,  the  fact  that  such  executor  afterwards  re- 
nounces the  appointment  cannot  change  the  character  of  the  in- 
strument nor  deprive  it  of  probate.^  One  who  is  simply  made  an 
executor  is  clothed  by  implication  with  the  usual  functions  per- 
taining to  the  office;  and  as  for  the  property,  silence  imports  a 
descent  and  distribution  such  as  the  staitute  prescribes  for  intestate 
estates;  though,  doubtless,  it  is  expedient  that  wills  of  this  sort 
should  expressly  direct  a  final  settlement  after  that  course. 

Wills,  on  the  other  hand,  are  pronounced  good  in  modern  prac- 
tice, which  make  provision  for  settling  the  estate  but  name  no  ex- 
ecutor at  all.^ 

§  298.  Wills  Good  which  make  only  a  Partial  Disposition,  or 
distribute  as  in  Case  of  Intestacy. 
Wills,    furthermore,  are  good  which  make  only  a  partial  dis- 

8.  Bayley  v.   Bailey,   5    Cush.   245;  an   executor,   which   is   not   signed  or 

Ili^ks's  Goods,  supra.  witnessed  in  compliance  with  the  stat- 

9    Godo]ph.  pt.  2,  c.  5,  §  1;  1  Wms.  ute,  the  will  is  valid,  except  for  the 

Exrs.  227;    Lancaster's  Goods,  1   Sw.  appointing     clause.       Myrick      Prob. 

&   Tr.   464;    Miskelly,   Re,   4   Ir.    Eq.  (Cal.)    76. 

12;    Schoul.  Exrs.   &   Admrs.    §    1031  2.  Wms.  Exrs.   7;    Schoul.   Exrs.   & 

(Vol     II);    Miller   v.    Miller,    32   La.  Admrs.    §    1003    (Vol.   II).     And   see 

Ann.  437;   Barber  v.  Barber,  17  Hun  Brady  v.  McCrosson,  5  Redf.   (N.  Y.) 

(X.  Y.)    72;    Stewart  v.   Stewart,   59  431;  Myrick  Prob.  76,  supra. 

!>!.  E.  116,  177  Mass.  493;  Mulholland  The   effect  of   naming  no  executor, 

V.  Gillan,  54  A.  928,  25  R.  I.  87  (pay-  or    of    renunciation    by    the    executor 

mont  of  debts  also  provided).  named,   is  to  admit  the  will   to  pro- 

1.  Jordan's    Goods,    L.    R.    1.    P.   &  bate;    the  court   constituting   an    ad- 

D.  555.  niinistrator    with    the    will    annexed 

Where  a  will,  executod  in  due  form,  for   the  emergency.     Schoul.   Exrs.  & 

is    followed    by    a   clause,    appointing  Admrs.  §  1122   (Vol.11). 

362 


CHAP.  I.]  WHAT   CONSTITUTES   A   WILL.  §    299 

position  of  one's  property ;  for,  wliother  it  be  tlirough  legal  opera- 
tion of  a  will  or  because  the  testator  so  intended,  one  may  die  tes- 
tate as  to  a  portion  of  bis  estate  and  intestate  as  to  the  residue.* 
And  one  may  by  his  will  expressly  provide  either  that  the  whole 
or  some  spe<3ific  portion  of  his  property  shall  descend  and  be  dis- 
tributed according  to  (th©  local  statute,  as  though  ho  died  intestate.* 

§  298a.  Will  Good,  notwithstanding  Blank  Spaces,  Erasures,  etc. 

A  will  is  not  invalid  because  blank  spaces  are  left  in  the  body  of 
the  instrument,  if  the  instrument  itself  be  coherent  and  consistent.^ 
As  for  interlineations  or  erasures,  'these  if  made  after  execution 
do  not  affect  the  will  except  pro  tanto,  and  th©  presumption  is  that 
they  were  made  before  execution.® 

§  299.  Wills  executed  under  a  Power. 

Attention  was  formerly  bestowed  in  England  upon  wills  ex- 
ecuted under  a  power  of  appointment;  the  general  rule  being,  tha.t 
the  instrument  creating  the  power  ought  to  be  followed  as  to  the 
mode  of  exercising  it.'  But  the  erroneous  exercise  of  a  power  is 
held  to  operate  as  a  will  if  the  person  had  a  right  to  dispose  of  th© 
fund.^  Such  questions  seldom  occur  in  American  practice ;  *  and 
English  legislation  now  sanctions  the  broad  principle  favored  by 
our  policy,  that  appointments  by  will  in  exercise  of  any  power,  re- 
quire for  their  validity  the  same  formalities  of  execution  and  at- 

3.  Schoul.  Exrs.  &  Admra.  §  1250.  W.  129,  173  Mo.  59;  Rowan's  Estate. 
But  the  presumption  is  that  a  testa-  83  A.  429,  234  Penn.  584  (trifling 
tor  means  to  dispose  of  all  his  prop-      changes). 

ertj'  by  the  will.     See  §  490,  post.  7.  Temple    v.    Walker,    3    Phillim. 

4.  Lucas  V.  Parsons,  24  Ga.  640,  71  394.  A  wife  might  by  virtue  of  a 
Am.  Dec.  747.  power  execute  a  will  without  her  hus- 

5.  Barnewell  v.  Murrell,  108  Ala.  band's  consent,  by  way  of  exception 
366,  18  So.  831;  73  S.  W.  129,  173  to  the  rule.  See  supra,  §  64;  1  Wms. 
Mo.  59.  Exrs.  384. 

6.  83  N.  Y.  S.  650;  6  Dem.  (N.  Y.)  8.  Southall  v.  Jones,  1  Sw.  &  Tr. 
162;   Jersey  v.  Jersey,  110  N.  W.  54,  298. 

146  Mich.  906.     See  §  334,  post.    And  9.  See  Porter  v.  Turner,  3  S.  &  R. 

see  Southworth  v.  Southworth,  73   S.      103. 

863 


§  299b  LAW  OF  WILLS.  [PAUT  IIL 

testation  as  other  wills,  and  nothing  beyond,  notwithstanding   any 
terms  which  may  have  been  employed  in  creating  the  power/ 

§  299a.  Proponent  of  a  Will  must  prove  its  Execution. 

Upon  the  proponent  of  a  will  rests  the  duty  of  proving  the  in- 
strument to  have  been  duly  executed,^  as  well  as  its  validity  for 
probate  within  the  jurisdiction  in  other  essential  respects. 

§  299b.  Valid  and  Invalid  Provisions. 

Where  valid  and  invalid  provisions  are  inseparable  in  a  will 
all  go  down  together  wherever  probate  and  establishment  are 
sought.  A  will  cannot  be  adjudged  valid  as  to  some  legatees  and 
invalid  as  to  others.^     But  it  is  otherwise  with  separable  pro- 


1.  Stat.  1  Vict.  c.  26,  §  10;   Crook-  2.  Schoul.    Exrs.    &   Adms.    §    1073 

enden  v.  Fuller,  1  Sw.  &  Tr.  70;  Hub-  (Vol.  II)  ;  supra,  §  170. 

bard  v.  Lee,  L.  R.  1  Ex.  255,  13  W.  3.  Burke  v.  Burke,   102  N.  E.  293, 

R.  394;  Blackburn,  Re,  43  Ch.  D.  75;  259   111.   262;    Croker   v.   Williamson,, 

Huber,  Re,    (1896)    P.   209;    Wrigley  102  N.  E.  588,  208  N.  Y.  480. 

V.  Lowndes,  P.   (1908)   348.  4.  Cf.  §§  248-250,  supra. 

364 


CHAP.  II.]  SIGNATURE  BY  THE  TESTATOR.  §    300 


CHAPTER  II. 

SIGNATURE    BY   THE    TESTATOR. 

§  300.  Statute  Requirements  as  to  Signing;  English  Rule. 

In  England,  as  we  have  already  seen,  a  will  of  personal  prop- 
erty was  valid  without  any  signature  by  the  testator,  until  the 
statute  of  1  Vict.  c.  26  came  into  operation ;  that  is  to  say,  if  made 
before  January  1,  1838 ;  and  whether  the  will  was  in  the  hand- 
writing of  the  testator  or  of  some  other  person  duly  authorized 
by  him  under  such  circumstances,  the  rule  was  the  same.^  But 
under  this  later  statute  the  prescribed  formalities  apply  equally  to 
wills  of  real  and  personal  property.^ 

On  the  other  hand,  the  Statute  of  Frauds  ^  had  for  more  than  a 
century  and  a  half  required  that  all  devises  and  bequests  of  lands 
or  tenements  should  be  in  writing,  signed  by  the  testator,  or  by 
some  other  person  in  his  presence,  and  by  his  express  direction, 
and  should  be  attested  or  subscribed  in  his  presence  by  three  or 
four  credible  witnesses.*  The  modem  statute,  1  Vict.  c.  26, 
making  the  word  ''  will  "  comprehend  all  testamentary  disposi- 
tions, and  using  the  convenient  terms  "  personal  estate  "  and  "  real 
estate,"  to  denote  the  two  grand  divisions  of  property,  declares 
that  no  will  shall  be  valid  unless  in  writing,  and  signed  at  the  foot 
or  end  thereof  by  the  testator,  or  by  some  other  person  in  his  pres- 
ence, and  by  his  direction ;  and  such  signajture  shall  be  made  or 
acknowledged  by  the  testator  in  the  presence  of  two  or  more  wit- 
nesses present  at  the  same  time,  and  such  witnesses  shall  attest  and. 
shall  subscribe  the  will  in  the  presence  of  the  testator,  but  no  form 
of  attestation  shall  be  necessary.''     It  is  under  this  latter  statute 

1.  Salmon  v.  Hays,  4  Hagg  382;  1  omitted  from  this  clause  of  the  fa- 
Wms.  Exrs.  68.  mous    statute,    but    found    in    other 

2.  Stipra,  §  253.  parts  of  it.     See  Lord  Alvanlcy,  in  3 

3.  29  Car.  II.  c.  3,  §  19.  Ves.  Jr.  661. 

4.  The    word    "hereditaments"    is  5.  Stat.  1  Vict.  c.  36   (1837). 

365 


§    301  LAW   OF  WILLS.  [part  III. 

that  tlie  modern  Englisli  cases  which  deserve  our  chief  study   are 
ranged. 

§  301.  Statute  Requirements  as  to  Signing:    American  Rule, 

The  policy  of  the  older  Statute  of  Frauds  in  this  respe'ct  has 
strongly  impressed  the  testamentary  jurisprudence  of  our  several 
States^  But,  admitting  local  variations  as  to  the  number  of 
attesting  witnesses  required,  and,  of  course,  local  exceptions  of 
principle,  our  American  legislatures  insist,  at  this  day,  upon  a 
formal  signature  and  attestation  to  each  will,  codicil,  or  testament,® 
regardless  of  the  character  of  the  property  embraced  under  the 
disposition,  and  to  much  the  same  effect  as  the  English  Statute  of 
1837;  but,  on  the  whole,  with  less  nicety  of  expression.  The  Mas- 
sachusetts code,  for  instance,  prescribes  for  each  testator  a  will  in 
writing,  "  signed  by  him  or  by  some  person  in  his  presence  and  by 
his  express  direction,  and  attested  and  subscribed  in  his  presence 
by  three  or  more  competent  witnesses."  ^  The  New  York  statute 
pronounces  more  explicitly  for  subscription  by  the  testator  "  at  the 
end  of  the  will  " ;  adding  further  provisions  for  making  or  ac- 
Icnowledging  the  signature  in  presence  of  the  witnesses.^  Other 
States  employ  still  different  language  in  their  respective  codes.  Of 
the  peculiar  virtue  ascribed  to  the  holograph  wills,®  even  to  this 
day,  in  various  States,  some  of  whose  legislatures  insist,  neverthe- 
less, that  the  writing  shall  be  signed  by  the  testator  himself,  we 
have  already  spoken.^  In  any  case  the  fact  that  the  testator  has 
wholly  written  out  his  own  will  imports  its  genuineness.     In  short, 

6.  The  few   instances  whore  nuncu-  30;   142  N.  Y.  S.  829.     If  no  "  signa- 

pative   wills   are   still    permitted    fol-  tiire  "  by  testator,  the  will  is  invalid 

low  a  different  rule.     See  c.  IV.  post;  though   witnesses  sign.     77  N.  Y.   S. 

37  S.  E.  707,  112  Ga,  450.  651.     And  see  Stinson's  Estate,  81  A. 

7a.  77   Ohio   St.    104,    17   L.    R.   A.  212,  232  Penn.  230. 

(N.  S.)   353,  82  N.  E.  1067;   Breiigle  8.  N.   Y.   Rev.   Stats.   1875,   Vol.   3, 

V.   Tucker,   80  A.   224,   114   Mo.   597;  c.  6,  p.  63. 

Avaro  v.  Avaro,   138  S.  W.   500.  235  9.  Or    those    in    a    testator's    own 

Mo.    424;    Kolin's   Estate,    137   N.   W.  handwriting. 

73.-5.  172  Mich.  342;  Fcdey's  Will,  136  •      1,  t^upra,  §  255;   43  La.  Ann.  319. 
K.  Y.  S.  933;   102  N.  E.  212,  259   III. 

3GG 


CJIAP.  II.]  SIGNATURE  BY  THE  TESTATOR.  §    303 

as  local  codes  differ,  our  present  investigation  must  be  held  strictly 
subject  to  local  variations  of  statute  requirement,  wherever  the  es- 
sential formalities  of  execution  come  up  for  discussion ;  for  in  each 
State  the  local  statute  requirements  must  be  carefully  complied 
with.2 

§  302.  Whether  Execution  signifies  more  than  Signing,  or  in- 
cludes Attestation. 

In  general  phrase  one  may  speak  of  the  proper  execution  of  a 
will  as  involving  the  full  legal  formalities  of  a  signature  and  at- 
testation ;  and  for  convenience  we  have  usually  so  employed  that 
word  in  these  pages.^  But  some  authorities  appear  to  apply  the' 
words  "  execution  "  and  "  attestation  "  separately,  as  though  the' 
former  term  related  only  to  the  testator's  own  act;  and  use  "ex- 
ecution and  attestation  "  to  denote  the  whole  formality.* 

§  303.  Will  may  be  signed  by  the  Testator,  or  his  Mark  made,. 
What,  we  now  inquire,  amounts  to  a  "  signing  "  by  the  testator 
so  as  to  satisfy  the  statute  requirement  on  the  subject  of  wills  ?  To 
write  out  one's  own  name  in  full  is  doubtless  the  safest  course,  as 
well  as  the  most  natural ;  for  such  compliance  best  indicates  a  ra- 
tional mind,  free  will,  and  physical  power,  at  the  date  of  execu- 
tion. But,  undoubtedly,  the  making  of  his  mark  or  cross  by  the 
testator  will  satisfy  the  statute ;  and  that,  too,  as  various  cases  rule, 
notwithstanding  he  was  able  to  write  at  the  time.^  Thus  has  it 
been  held  in  cases  arising  under  the  Statute  of  Frauds;  ^  and  those 

2.  §§  252-254.  5.  Baker  v.  Dening,  8  Ad.  &  El.  94; 

3.  Statute  1  Vict.  c.  26,  §  9,  sane  Sprague  v.  Luther,  8  R.  I.  252;  Chase 
tions  this  extended  use  of  the  word.  v.  Kittredge,  11  Allen,  49,  87  Am. 
It  declares  that  no  will  shall  be  valid  Dec.  687;  Higgins  v.  Carlton,  28  Md. 
in  writing  "and  executed  in  manner  115,  92  Am.  Dec.  666;  28  So.  687,  127 
hereinafter  mentioned;  "  and  then  Ala.  14;  Corcoran's  Will,  129  N.  Y. 
proceeds  to  describe  the  details  of  S.  165;  Cozzen's  Will,  61  Penn.  St. 
signing,  acknowledging,  and  attest-  196;  2  Curt.  325;  Jenkins'  Will,  43 
ing  the  will.  Wis.  610;  19  Mo.  609. 

4.  See  1  Jarm.  Wills,  title  to  c.  6,  6.  See  1  Wms.  Exrs.  76;  Baker  v.. 
etc.     This  narrower  sense  of  the  word  Dening,  8  Ad.  oc  El.  94. 

"  execution  "  is  not  to  be  commended 
for  modern  practice. 


303 


LAW   OF  WILLS. 


[part  III. 


decisions  apply  equally  to  the  Statute  of  Victoria,  which  is  ex- 
pressed in  language  almost  identical ;  as  also  to  most  American 
codes.  Other  modes  of  signature  are  permitted  besides.  Accord- 
ingly, the  will  has  been  upheld  where  the  testator  made  a  mark, 
with  his  hand  guided  or  not  guided  by  another ;  ^  or  where  the  tes- 
tator wrote  only  his  initials ;  ^  or  where  his  full  signature  was  ef- 
fected by  the  aid  of  another  person  who  guided  his  hand ;  ^  or 
where  he  stamped  his  name ;  ^  or  where  only  the  Christian  nam© 
or  surname  was  signed ;  ^  provided  that  in  all  such  cases  the  tes- 
tator's knowledge  and  free  consent  and  completed  testamentary 
purpose  accompany  the  act,  which  here  is  an  act  of  signature  by 
himself.^  It  is  obvious  that  a  testator  may  know  how  -to  write  and 
yet  at  the  time  of  execution  be  physically  unable  to  do  so.* 

The  statute  is  satisfied,  moreover,  where,  the  testator  having  re- 
quested another  to  sign  the  paper  as  his  will  for  him,  the  latter 
complies  under  the  strict  precautions  of  the  code.^     Or  where,  in 


7.  Wilson  V.  Beddard,  12  Sim.  28; 
Baker  v.  Dening,  supra;  Jackson  v. 
Van  Dusen,  5  John.  144,  4  Am.  Dec. 
330;  Nickerson  v.  Buck,  12  Cusli. 
332;  Upchurch  v.  Upchurch,  16  B. 
Mon.  112;  Thompson  v.  Thompson, 
49  Neb.  157,  68  N.  W.  372;  103  Minn. 
286,  114  N.  W.  838,  140  111.  649,  33 
Am.  St.  Rep.  265,  30  N.  E.  383;  107 
Iowa  723,  70  Am.  St.  Rep.  228,  77  N. 
W.  467;  130  N.  Y.  S.  1059;  43  Wis. 
610. 

8.  Savory,  Re,  15  Jur.  1042.  Or 
where  he  affixed  a  seal  stamped  with 
his  initials,  and  pronounced  it  his 
"  hand  and  seal."  Emerson's  Goods, 
L.  R.  9  Ir.  443. 

9.  Vandruff  v.  Rinehart,  29  Penn. 
St.  232,  74  N.  Y.  S.  1045;  Wood  v. 
Trust  Co.,  61  A.  757,  27  R.  I.  295; 
Stevens  V.  Van  Cleve,  4  Wash.  (U.  S. 
Cir.)  262.  In  Wilson  v.  Beddard,  12 
Sim.  28,  some  stress  was  laid  upon 
the    circumsLance    that    the    testator, 


before  having  his  hand  guided  to  exe- 
cute the  paper,  m;ide  some  faint 
strokes  upon  each  of  the  sheets. 

1.  See  .Jenkins  v.  Gaisford,  3  Sw. 
&  Tr.  93. 

2.  Knox's  Estate,  131  Penn.  St. 
220,  17  Am.  St.  Rep.  798,  18  A.  1021. 
"  Custom  controls  the  rule  of  names, 
and  so  it  does  the  rule  of  signatures." 
lb. 

3.  A  will  is  not  legally  executed 
where  the  testator's  hand  is  guided 
by  another  who  holds  it  while  he  does 
not  know  what  is  being  done.  Whit- 
sett  V.  Belue,  54  So.  677,  172  Ala.  256. 

4.  See  Guilfoyle's  Will,  96  Cal.  598, 
22  L.  R.  A.  370,  31  P.  553. 

5.  Vernon  v.  Kirk.  30  Penn.  St. 
218;  Abraham  v.  Wilkins,  17  Ark. 
292;  49  Neb.  157,  76  Neb.  823,  107 
N.  W.  1016,  76  S.  W.  361.  25  Ky. 
Law.  763;  Dombrowski's  Estate,  125 
P.  233,  163  Oal.  290. 


;g8 


■CHAP.  II.]  SIGNATURE  BY  THE  TESTATOR.  §    304 

ithe  testator's  presence  and  by  his  express  direction,  another  person 
under  the  same  precautions  stamps  the  will  by  way  of  signature 
with  an  instrument  on  which  the  testator  has  had  his  usual  signa- 
ture engraved  for  convenience  in  stamping  letters  or  otiier  docu- 
ments requiring  his  signature.^  For  under  the  Statute  of  Frauds, 
as  well  as  the  Wills  Act  of  Victoria,  and  various  codes  in  the 
United  States,  provision  is  made  for  the  signing  of  the  will,  not 
only  by  the  testator  himself,  but  also  by  some  otheir  person  in  his 
presence  and  by  his  express  direction. '^  There  are  States,  however, 
where  this  signing  by  another  is  placed  by  legislation  under  nar- 
rower restraints.^ 

§  304.  The  Same  Subject. 

It  has  been  held  in  some  instances  that  where  the  testator  signs 
by  initials  o-r  under  an  assumed  name,  such  a  signature  may  satisfy 
the  statute  by  passing  as  the  testator's  mark.^  However  this  may 
be,  an  imperfect  or  indistinct  subscription  of  the  testator's  name 
to  the  will  may  be  regarded  as  his  mark.^  There  are  American 
statutes,  furthermore,  which  expressly  authorize  the  signature  by 
mark.^     But  it  should  still  be  observed  that  the  mark  or  indistinct 

6.  Jenkins  v.  Gaisford,  3  Sw.  &  Tr.       1  Wms.  Exrs.  76;    15  Jur.  1042. 

93.     Ergo,  such  a  stamp  the  testator  1.  Hartwell   v.   MoMaster,    1    Redf. 

may  use  to  make  his  own  signature,  (N.  Y.)    389. 

instead  of  signing  with  the  ordinary  2.  Smith  v.  Dolby,  4  Harring.  350; 

writing      materials;      the      essential  Burford  v.  Burford,  29  Penn.  St.  221. 

question   being   whether    such   an    in-  The   Pennsylvania    act    referred    to 

strument    was    used    animo    testandi.  in    Burford    v.    Burford,    supra,    was 

In  the  present  case  the  testator  was  passed    in    1848    under    singular    cir- 

paralyzed,   and   the  stamp  was  made  cumstances.     Contrary  to  the  current 

for  him  on  that  account.  of   English   and   American   authority, 

7.  Supra,  §§  300,  301;  Riley  v.  the  Pennsylvania  courts  took  early 
Riley,  36  Ala.  496.  ground  that  signing  by  mark  or  cross 

8.  McElwaine,  Re,  3  C.  E.  Green,  would  not  give  the  will  validity. 
(N.  J.)  499;  Vines  v.  Clingfost,  21  Cavett's  Appeal,  8  W.  &  S.  21.  5 
Ark.  309.  Assent  and  knowledge  by  Penn.  St.  21.  441;  Greenough  v. 
the  testator  without  his  "express  Greenough,  11  Penn.  St.  489.  The 
direction,"  are  insufficient.  48  Neb.  statute  thus  strictly  constructed  was 
€08,  67  N.  W.  470.  the  act  of  1833,  taken  from  29  Car. 

9.  R^dding's  Goods,  2  Robert.  339;       II.   §   2,  under  which  it  had  been  re- 

24  309 


§    305  LAW   OF  WILLS.  [pART  III. 

subscription  by  the  testator  should  have  been  intended  by  him 
as  his  signature.^  If  the  testator  makes  his  mark  to  the  will  as 
his  own,  the  fact  that  another  wrote  the  testator's  name  wrong 
against  the  mark  does  not  invalidate  it/ 

§  305.  A  Prudent  Testator  will  write  out  his  own  Signature  if 
he  can. 

But  while  the  signature  by  mark,  by  a  stamping  device,  or  by 
the  hand  of  some  other  person  in  the  testator's  presence,  by  his  ex- 
press direction,  may  satisfy  the  letter  of  legal  requirement,  no  one 
who  is  competent  to  write  out  his  own  signature  executes  his  will 
wisely,  unless  he  either  signs  thus  or  shows  some  good  reason  -to 
the  contrary,  which  can  be  explained  at  the  probate.  For  the  bur- 
den of  establishing  the  instrument  he  leaves  behind  is  sufficiently 
great,  even  though  he  should  cast  no  needless  discredit  upon  it. 
The  uncommon  modes  of  signing  naturally  import  illiteracy,  fee- 
bleness, or  dependence  upon  others,  and  easily  encourage  the  im- 
putation of  fraud,  imposition,  or  error  in  the  transaction,  unless 
very    cautiously    pursued.^     In    Pennsylvania,    and    some    other 

peatedly  decided  that  a  signature  by  doubting  that  he  fully  intended  a 
mark  was  sufficient.  The  above  cases  signature.  lb.;  §  313.  And  where  the 
were  justly  criticized  in  Vernon  v.  stroke  is  shown  to  have  been  made 
Kirk,  30  Penn.  St.  218,  where  it  was  with  an  arrested  intention  of  sign- 
said:  "  If  a  mark  was  not  a  signature  ing,  it  cannot  amount  to  an  execu- 
within  the  meaning  of  the  statute,  tion.  Plate's  Estate,  23  Atl.  1038, 
then  those  unable  to  write  could  not  148  Penn.  55. 

sign,  and  signing  by  another  was  per-  4.  Rook  v.  Wilson,  142  Ind.  24,  51 

niitted    only    when    inability    to   sign  Am.  St.  Rep.  163,  41  N.  E.   311. 
was  caused  by  the  extremity  of  the  5.  Mr.  Jarman,  writing  for  English 

last   illness."  readers,  considers  it  inadvisable  for  a 

3.  On  the  supposition  that  a  faint  testator    in   these   days     to    sign     by 

mark  or  marks  on  the  writing  set  up  another,  unless  physically  very  weak, 

as  a  will  did  not  appear  to  have  been  so  that  he  cannot  even  make  his  mark, 

placed  there  with  the  intent  of  sign-  Even     illiterate     persons     and     para- 

ing,  a  will  was  pronounced  invalid  in  lytics  had  better  sign  by  mark  than 

Evorhart  v.  Everhart,  34  Fed.  R.  82.  sign  by  another.      (See  3  Curt.  752.) 

Where  a  testator,  who,   in  his  ordi-  In  short,  as  he  observes,  the  testator 

nary  condition,  can   write  his  name,  should  conform  as  nearly  as  possible 

makefl   such    a   mark    in    an    unusual  to  his  usual  mode.     1   Jarm.   Wills, 

place,  there  is  all  the  more  ground  for  110.    And  see  (1891)  App.  C.  435. 

370 


OHAP.  II.]  SIGNATURE  BY  THE  TESTATOR.  §    306 

States,  the  testator  must  sign  by  his  own  proper  signature,  if  he  is 
able  'to  do  so;  ^  and  though  most  authorities  have  ruled  less  posi- 
tively on  the  subject,  it  seems  always  proper,  where  a  testator 
habitually  wrote  his  own  name  and  did  not  in  this  instance,  for 
the  court,  in  case  of  a  contest,  to  try  and  elicit  some  explanation, 
and,  if  none  satisfactory  be  given,  to  take  the  circumstance  into 
account  adversely,  where  other  suspicious  circumstances  of  more 
positive  bearing  are  shown  besides.  Signing  by  another  is  espec- 
ially liable  to  doubt  and  suspicion. 

Nevertheless,  the  general  rule  in  the  American  States  is  said  to 
be,  that  the  testator  may  sign  by  his  mark,  and  that  where  he  does 
so,  it  will  be  presumed  that  he  does  it  from  necessity,  either  tem- 
porary or  permanent.^ 

§  306.  Local  Variations  of  Rule;  Signature  by  Testator  himself 
and  by  another  distinguished. 

If  the  rule  on  this  subject  appears  rather  uncertain,  we  must 
first  allow  for  local  variations  in  statute  and  each  legislative  policy. 
Next,  we  should  bear  in  miud,  'that  signature  by  the  testator  him- 
self and  signature  by  another  are  distinguished  in  all  these  codes. 

There  is  by  no  means  the  same  facility  accorded  for  signature 
by  attorney  where  a  will  is  to  be  executed  as  in  the  ordinary  trans- 
actions of  life.  If  an  illiterate  but  intelligent  testator  makes 
cross-strokes  with  his  pen  upon  the  paper,  the  act  of  signature  is 
his  own;  and  so,  too,  where  the  hand  of  a  testator,  who  is  physi- 
cally imable  to  subscribe  without  assistance,  is  guided  suitably  by 

6.  5  Penn.  St.  21,  441.  (~f.  Cnz-  the  extremity  of  his  last  illness;  and 
zen's  Will,  61  Penn.  St.  196.  And  to  bring  the  will  within  the  exception, 
see  Butler  v.  Benson,  1  Barb.  (N.  Y. )  there  must  be  two  witnesses  to  show, 
526;  Fritz  v.  Turner,  46  N.  J.  Eq.  (1)  the  inability  of  the  testator  to 
515,  22  A.  125.  sign,    (2)    his   inability  to  direct  an- 

7.  1  Redf.  Wills.  205,  note,  citing  other  to  sign.  Rudff's  Appeal,  26 
Upchurch  v.  Upchurch,  16  B.  Mon.  Penn.  St.  219.  And  see  9  Penn.  St. 
102;   and  Ray  v.  Hill,  3  Strobh.  279.  54.     Such  "inability"  to  sign  is  not 

The   Pennsylvania  statute   requires       to    be    harshly    construed.      Diehl    v. 
the  testator  to  sign,  or  direct  another      Eogers,  169  Penn.  St.  316. 
to  sign  for  him,  unless  prevented  by 

371 


§    306  LAW   OF  WILLS.  [pART  III. 

another.  Wherever,  in  truth,  the  act  is  the  testator's  own  act, 
animo  tcstandi,  though  with  the  assistance  of  another,  it  is  not 
necessary  to  prove  any  express  request  for  assistance  on  his  part.^ 
And  under  any  circumstances,  a  testator  signs  his  will,  where  he 
makes  the  physical  effort,  and  perfomis  the  act,  even  though  his 
hand  be  steadied  or  guided  by  another,  if  something  is  produced 
upon  the  paper,  sufficient  to  identify  his  signature,  and  his  own 
purpose  to  sign  accompanied  the  action,  while  he  was  assisted  and 
not  controlled.* 

But  the  mere  fact  that  the  testator's  name  is  written,  or  his 
mark  made  by  another  person,  affords  no  presumptive  evidence 
that  it  was  done  at  his  request  and  in  his  presence.-^  As  to  this  act 
of  another  under  authority  from  the  testator,  the  statute  direction, 
usually  imperative  and  strict,  must  be  carefully  observed ;  for 
wherever  the  "  signing  "  is,  so  to  speak,  not  the  testator's  own,  but 
something  which  he  is  to  adopt,  great  hazard  is  incurred.^  A  sub- 
scription, "A.  B.  for  C.  D.,  at  his  requesit,"  is  held  a  sufficient  form 
to  be  followed ;  ^  and  under  many  State  codes  this  form  would 
doubtless  be  dispensed  with,  upon  due  proof  of  the  surrounding 
circumstances,  showing  that  all  was  rightly  and  properly  done. 
But  there  are  American  codes  which  insist  upon  more  than  this ; 

8.  Van     Hanswick     v.     W^esp,     44  Eq.  515,  22  A.  125.    Whitsett  v.  Belue, 

Barb.  494;    Vandruff  v.   Rineliart,  29  54  So.  677,  172  Ala.  256. 

Penn.   St.   232.  1.  Greenough     v.      Greenoucrh,      11 

Where    a    testator     subscribes     by  Penn.  St.  489,  51  Am   De;.  567.     And 

mark,    it    is    the   mark,   and    not   the  see   Munhall's   Estate,   8.3   A.   66,   234 

name    written    round    it   by    another,  Penn.   169    (nuncupative  will), 

which    constitutes    the    subscription;  2.  If    a    testator    makes    his    own 

and   hence   it   is   immaterial   whether  mark,  he  signs;   and  the  additi(m  of 

such  name  is  written  before  or  after  the  words  "  his  mark  "  by  a  stranger 

tlie  mark  is  made.     Jackson  v.  Jack-  does   not   impair   the   validity   of   his 

son,   39   N.   Y.   153.     Tlie  writing   of  signature.      Grubbs   v.   McDonald,    91 

the   testator's   name   w-ith    the   words  Penn,    St.   236.     And   see   Jackson   v. 

"his   mark"   to   identify   a   subscrip-  Jackson.   39  N.  Y.   153, 

tion  by  mark,  is  not  the  "signing  of  3,  Vernon    v.    Kirk,    30    Penn     St. 

liis  name  by  liis  direction,"  etc.,  under  218;    Abraham    v,    Wilkins,    17    Ark. 

the  statute.     Tb.  292. 


See    Fritz    v.    Turner,    46    N.    J. 


172 


CHAP.  II.]  SIGNATURE  BY  THE  TESTATOR.  §    307 

that  of  New  Jersey,  for  instance,  whose  policy  guards  with  great 
jealousy  the  making  of  a  will  without  the  testator's  own  signature. 
In  this  State,  the  statute  providing  that  "  the  signature  shall  be 
made  by  the  testator,  or  the  making  thereof  acknowledged  by  him 
in  the  presence  of  two  witnesses,"  it  is  held  insufficient  that  an- 
other should  write  the  name  at  the  request  of  the  testator.^  And 
generally  speaking,  there  must  be  no  ambiguous  proof  of  authority 
to  sign  on  the  testator's  behalf ;  for  "  express  direction," 
and  not  indirect  permission,  is  the  usual  intendment  of  our  codes.* 

§  307.  The  Same  Subject:   English  Rule. 

Under  the  Statute  of  Victoria  it  has  been  held  that  where  the 
testator  duly  acknowledged  his  signature  to  the  attesting  witnesses, 
this  is  prima  facie  sufficient,  without  proving  that  the  signature  is 
in  his  handwriting  or  that  it  was  made  by  some  other  person  in  his 
presence  and  by  his  direction.^  And  the  person  who  signs  for  the 
testator,  at  the  latter's  express  request,  may  sign  the  will  for  him, 
not  in  tlie  testator's  name,  but  using  his  own  name.^  But  this  sig- 
nature in  one's  presence  by  a  third  party  must,  in  general,  be  ac- 

4.  McElwaine,  Re,   3    C.   E.   Green,  that     one     signed     in    the    testator's 

(N.   J.)    499.     In   this   case   the   tes-  presence  and  by  his  express  direction, 

tator    adopted    the    signature    as    his  is  quite  liberally  treated.     Haynes  v. 

before    two    witnesses,    but    did    not  Haynes,  33  Ohio  St.  598,  31  Am.  Rep. 

"  acknowledge    the    making    thereof."  579.      See  also  Peake  v.   Jenkins,   80 

This   decision  was  a  harsh   one,  and,  Va.  293. 

as   the  court   admitted,   set   aside,   in  5.  Waite  v.  Frisbie,  45  Minn.  361, 

fact,  what  the  deceased  doubtless  had  47  N.  W.  1069. 

intended  as  his  will;  it  proceeded  up-  6.  Gaze  v.  Gaze,  3  Curt.  456. 

on  a  close  interpretation  of  a  strict  7.  Clark's  Goods,  2  Curt.  329.  Here 

statute.       Cf.     Smith     v.     Harris,     1  the    will    ran,    "  Signed   on   behalf   of 

Robert.  262,  which  tends  to  the  con-  the  testator,  by  me.  A.  B  ,"  etc.     And 

trary  view.  see  6  Notes  Cas.  528,  cited  in  1  Jarm. 

And  see  Vines  v.  Clinfost,  21  Ark.  Wills,  79,  where  the  person  who 
309,  cited  post,  §  308.  Under  the  signed  for  the  testator  did  so  by  writ- 
Missouri  code  strict  formalities  are  ing  at  the  foot,  "  This  will  was  read 
prescribed  where  one  signs  tlie  tes-  and  approved  by  C.  F.  B.,  by  C.  C, 
tator's  name  at  his  alleged  request.  in  the  presence  of,"  etc.,  and  then 
McGee  v.  Porter,  14  Mo.  611;  19  Mo.  followed  the  signatures  of  the  wit- 
609;   21  Mo.  17.     But  in  Ohio  proof  nesses.     These  wills  were  held  good. 

373 


§    309  LAW  OF  WILLS.  [pART  IIL 

companied  by  some  act  or  word  on  the  part  of  tlie  testator,  'to  show 
that  it  was  made  at  his  request.^ 

§  308.  Testator's  Name  may  be  affixed  by  a  Subscribing  Wit- 
ness. 

A  testator's  name  may,  at  his  request,  and  in  his  presence  be 
affixed  to  his  will  by  a  competent  subscribing  witness,  as  well  as 
by  any  third  party ;  and  the  effect  of  this  is  the  same  as  though  the 
name  were  written  by  the  testator  himself.^  Some  codes  make  it 
imperative  that  any  one  who  shall  sign  the  testator's  name  by  his 
direction,  shall  write  his  own  name  as  a  witness  and  state  that  he 
signed  at  request ;  though  where  the  testator  holds  the  pen  and  an- 
other person  guides  it,  the  act,  as  we  have  seen,  is  the  testator's 
own,  and  such  writing  and  statement  by  the  witness  is  not  neces- 
sary.^ 

The  English  rule  also  permits  the  signature  for  the  testator  in 
his  presence  and  by  his  express  direction  to  be  made  by  one  of  the 
attesting  witnesses.^ 

§  309.  Seals  are  dispensed  with;  Sealing  is  not  "Signing." 

A  seal  is  not  indispensable  to  a  will  in  modem  times,  unless,  as 
rarely  happens,  the  local  statute  insists  upon  it.^     Xor  is  a  will 

8.  Cf.  13  Law  Times,  643,  and  20  1.  Vines  v.  Clingfost.  21  Ark.  309; 
Law  Times,  757.  According  to  Mr.  McGee  v.  Porter,  14  Mo.  611,  55 
Jarman,  it  is  well  where  a  third  per-  Am.  Dec.  129.  One  who  signs  the 
son  signs  for  the  testator,  to  have  it  name  of  the  testator  at  his  request 
in  the  name  of  the  testator  rather  may  also  be  one  of  the  subscribinc; 
than  of  the  amanuensis,  who  should  witnesses  to  the  will.  Leonard,  Ex 
be  thus  designated  in  the  attestation  parte,  39  S.  C.  518,  22  L.  R.  A.  302, 
clause.     1  Jarm.  110.  18  S.  E.  216. 

9.  Herbert  v.  Berrier,  81  Ind.  1;  2.  Bailey's  Goods,  1  Curt.  914; 
Robbins  v.  Coryell,  27  Barb.  556,  6  Smith  v.  Harris,  1  Robert.  262. 
Dem.(N.  Y.)262;  70  P.  489,  30  Wash.  3.  Avery  v.  Pixley,  4  Mass.  460; 
239;  Riley  v.  Riley,  36  Ala.  496.  But  Piatt  v.  McCullough,  1  Mcl-/ean,  69; 
see  McElwaine  Re,  3  C.  E.  Green,  Arndt  v.  Arndt,  1  S.  &  R.  256;  Doe 
499,  under  the  peculiar  statute  of  v.  Pattison,  2  Blackf.  355;  Grubbs 
New  Jersey.  v.  :McDonald,  91  Penn.  St.  236. 

374 


CHAP.  II.]  SIGNATURE  BY  THE  TESTATOR.  §    300 

rendered  invalid  for  want  of  a  seal,  oven  though  the  attestation 
clause  should  speak  of  its  being  "  signed  and  sealed."  In  various 
American  States,  indeed,  the  use  of  a  seal  has  lost  most  of  the  effi- 
cacy our  common  law  once  bestowed  upon  it.  But  testaments  are 
still  signed  and  sealed  in  very  many  instances ;  and  this  solemn  but 
simple  precaution  may  often  prove  a  sensible  one  for  allaying 
doubt,  where  powers  touching  real  estate  are  expressly  given, ^  At 
the  same  time,  the  unnecessary  addition  of  a  seal  does  not  change 
a  will  into  a  deed,  nor  justify  treating  the  instrument  as  partly  a 
will  and  partly  a  deed  when  it  was  obviously  meant  as  a  will  alone.^ 
Sealing  was  once  thought  a  sufficient  substitute  for  signing 
where  wills  were  to  be  executed ;  but  that  doctrine  is  no  longer  ten- 
able ;  ^  for  it  is  clear'  that  signing  and  sealing  are  different  acts, 
though  capable  of  being  united.* 

§  310.  Misnomer  or  Discrepancy  in  the  Signature,  etc. 

A  document  signed  as  one's  will  through  some  palpable  error  or 
fraud,  when  it  was  in  reality  another's  will  ot  no  will  at  all,  can- 
not, of  course  stand.^  But  if  the  right  instrument  is  intentionally 
signed  as  one's  own  will,  a  mere  misnomer  or  discrepancy  of  sig- 
nature does  not  vitiate  the  paper,  provided  its  genuineness  be  duly 
established.     As  where  the  will  of  T.  D.  describes    the    testator 

4.  8  Mo.  App.  66.  Wms.    Exrs.    77;    1    Jarm.    Wills,    78. 

5.  The  lex  loci  as  to  the  method  of  It  may  be  shown  by  oral  testimony 
conveying  land  should  not  be  unheed-  that  the  seal  on  a  -will  was  affixed  by 
ed.  In  New  Hampshire  sealing  is  the  testator's  direction.  Pollock  v. 
required  to  a  will  of  real  estate,  ac-  Glassell,  supra. 

cording  to  Rev.  Stats.  1843,  c.  156,  §  8.  See  Emerson's  Goods,  L.  R.  9  Ir. 

6.      So  it   is  with   one   or   two   other  443,   where   a  testator   affixed   a  seal 

States.      1    Jarm.    Wills,    105,    Bige-  with  his  initials,  placed  his  finger  on 

love's  note.  the  seal,  and  called  it  his  "  hand  and 

6.  Wuesthoff  V.  Germania  Life  Ins.  seal."  This  was  deemed  a  sufficient 
Co.,    107   N.    Y.    580,    14   N.    E.    811.  signing. 

Here  the  appointment  of  a  guardian  9.  Supra,    §    215.      A   misnomer    in 

was  the  matter  in  controversy.  the  signature  may  aid  in  determining 

7.  See  3  Lev.  1 ;  1  Ves.  Jr.  12 ;  an  issue  of  forgery.  McGuire  v.  Kerr, 
Wright    V.    Wakefield,    17    Ves.    458;  2  Bradf.  (N.  Y.)   244. 

Pollock   V.   Glassell,   2   Gratt.   439;    1 

375 


§    311  LAW   OF  WILLS.  [part  III. 

throughout  by  a  wrong  name,  such  as  C.  D.  and  he  signs  it  by  his 
right  one/  Or  where  against  the  testator's  mark  a  wrong  name  is 
written,  the  will  describing  him  by  the  right  one.^  Or  where  the 
maiden  name  of  a  testatrix  is  interchanged  with  her  married  one 
under  like  circumstances.^  And  generally,  where  one  signs  animo 
testandi,  though  by  a  wrong  or  assumed  name.* 

A  signature,  whether  by  name  or  mark,  satisfies  the  statute,  not- 
withstanding the  testator's  name  does  not  appear  at  all  in  the  body 
of  the  instiiiment.^ 

§  311.  Position  of  the  Signature;  English  Rule. 

The  place  of  signature  to  the  will  is  insisted  upon  more  strictly 
by  some  codes  than  others.  The  Statute  of  Frauds  merely  required 
that  the  will  should  be  "  signed  "  by  the  testator ;  and  hence,  a 
will,  intended  as  such,  and  expressed  in  the  testator's  own  hand- 
writing, which  commenced  "  I,  A.  B.,  do  declares  this  to  be  my 
last  will,"  etc.,  was  treated  as  made  in  literal  compliance  with  the 
act,  though  no  signature  was  added  at  the  end.®  But  the  mischief 
of  setting  up  holographic  wills  which  were  likely  enough  to  have 
been  no  more  than  the  rough  sketch  of  a  will  was  apparent  enough, 
when  the  Statute  of  Victoria  was  framed.  That  statute,  as  we 
have  just  seen,  designated  the  foot  or  end  of  the  will,  as  the  place 
where  the  testator  should  write  his  signature.^ 

Doubts  soon  arose,  however,  in  the  construction  of  1  Vict.  c.  26 
(1837),  on  this  very  point  of  a  signature  at  the  foot;  for  testa- 
tors would  carelessly  sign  far  below  where  the  will  itself  was  writ- 
ten, or  at  the  foot  of  'the  attestation  clause,  or  in  other  out  of  the 
way  places;  and  the  question  had  to  be  decided  whether  the  statute 

1.  Doucp's  Goods,  2  Sw.  &  Tr.  593.  5.  Bryce's  Goods,  2  Curt.  325. 

2.  Clarke's  Goods,  1  Sw.  &  Tr.  22.  All    such    errors,    discrepancies,    or 

3.  lb.  omissions,    may    be    corrected,    recon- 

4.  1    Jarm.    Wills,    78;     Redding's  ciled,  or  supplied  by  proof  alinude. 
Goods,   2    Robert.    339;    5   Notes   Cas.  6.  Pre.  Ch.  184;   3  Lev.   1;   Coles  v. 
553 ;  Long  v.  Zook,  13  Penn.  St.  400.  Trecothick,  9  Ves.  249 ;  1  Jarm.  Wilis, 
See  also  Tyler  v.  Theilig,  52  S.  E.  606,  c.  79;   1  Wms.  Exrs.  78. 

124  Ga.  204   (both  foreign  and  native  7.  Supra,  §  300. 

Burname) . 

376 


CHAP.  II.] 


SIGNATURE  BY  THE  TESTATOR. 


Ill 


was  thus  complied  with  or  not.  At  first  inclined  to  a  liberal  in- 
terpretation, the  courts  soon  settled  upon  a  strict  one,  on  the 
ground  that  the  policy  of  the  legislature  was  to  guard  against 
fraudulent  additions  to  a  will  after  the  testator  had  executed  it; 
and  in  consequence  <the  intentions  of  many  who  had  not  closely 
marshalled  the  body  of  the  will  behind  the  maker's  own  signature 
were  frustrated.^  Hence  was  enacted  afterwards  the  Stat.  15 
Vict.  c.  24  (1852),  which  somewhat  verbosely  explained  the  for- 
mer act,  and  brought  within  its  remedial  scope  not  only  future 
wills,  but  those  already  made,  upon  whose  defective  execution  the 
settlement  of  the  estates  concerned  had  not  yet  been  directed.  The 
purport  of  this  explanatory  act  was  to  make  the  precise  place  of 
signature  of  minor  consequence,  provided  the  signature  itself  was 
so  placed  ait  or  after,  or  following,  or  under,  or  beside^,  or  opposite 
to  the  end  of  the  will,  that  it  could  be  gathered  from  the  face  of  the 
will  that  the  testator  intended  thereby  to  give  'the  instrument  effect 
as  his  will.^     While  a  more  liberal  turn  is  thus  given  to  the  latest 


8.  1  Wms.  Exrs.  78;  Willis  v. 
Lowe,  1  Robert.  618;  Smeer  v.  Bryer, 
1  Robert.  618;  6  Moore  P.  C.  404. 

But  probate  of  a  will  has  been  al- 
lowed under  Stat.  1  Vict.  c.  26,  §  9, 
where  it  concluded,  "  signed  and 
sealed  as  for  the  will  of  me,  C.  E.  T. 
W.,  in  the  presence  of  us,  D.  H.  and 
E.  H."  as  being  signed  at  the  foot  or 
end  thereof.  Woodington  Re,  2  Cuit. 
324.  And  see  2  Sw.  &  Tr.  12.  In 
such  a  case  the  court  should  be  satis- 
fied that  the  name  as  thus  written 
was  intended  as  a  signature.  See  also 
Pearn's  Goods,  1  P.  D.  70;  Walker's 
Goods,  2  Sw.  &  Tr.  354;  Casmore's 
Goods,  L.  R.  1  P.  &  D.  653.  The  pro- 
visions of  15  Vict.  c.  24  strengthen 
the  favorable  interpretation  that, 
under  all  the  circumstances,  the  tes- 
tator intended  his  signature  in  the 
testimonium    clause   to   serve   as    the 


real  signnture  under  the  will.  Pearn's 
Goods,  supra.  A  similar  case  was 
Huckvale,  Re,  L.  R.  1  P.  &  D.  375, 
where  the  only  signature  of  tlie  in- 
strument appeared  in  the  attestation 
clause,  which  was  squeezed  into  wliat 
had  been  a  blank  sp.ice. 

9.  The  language  of  Stat.  15  Vict.  c. 
24  (known  as  the  Wills  Amendment 
Act  of  1852)  may  be  studied  in  1 
Wms.  Exrs   79-82.    And  see  next  note. 

Under  neither  of  these  wills  acts 
of  Victoria  is  it  provided  that  the 
will  shall  be  written  continuously. 
Hence  there  might  be  blank  inter- 
mediate spaces  in  the  body  of  the 
will,  where  the  policy  of  the  statute 
would  fail  to  protect  the  will  against 
a  fraudulent  insertion  subsequent  to 
the  execution,  in  spite  of  its  pains  to 
prevent  addition  at  the  foot  and  be- 
fore the  signature    See  1  Robert.  669, 


6  I  i 


§  311 


LAW  OF  WILLS. 


[p.VET  III. 


decisions,  ttere  remains  uncertainty  still,  as  to  precisely  what  sball 
constitute  a  valid  signature  in  respect  of  position,  so  as  to  take  the 
whale  will  under  its  eover.^ 


705 ;  1  Wms.  Exrs.  83.  Where  a  lith- 
ographed form  of  will  was  used,  the 
lithographed  clauses  being  on  the 
first  page  only,  and  ithe  testator 
wrote  the  will  mainly  on  the  second 
and  third  pages,  leaving  the  fourth 
page  blank,  and  signed  and  executed 
at  the  foot  of  the  first  page  instead  of 
at  the  end  of  the  writing,  the  court 
sustained  the  signature  as  a  due 
compliance  with  the  statute  of  15 
Vict.  c.  24.  This  conclusion  was  in- 
geniously reached;  namely,  by  sup- 
posing (as  the  whole  sense  of  the 
will  permitted)  that  the  testator  be- 
gan on  the  second  and  third  pages, 
and  so  came  round  to  the  first  page, 
making  the  lithographed  clauses  in 
effect  the  conclusion  of  the  will. 
Wotton's  Goods,  L.  R.  3  P.  &  D.  159. 
But  where  the  words  used  on  the 
second  and  third  pages  import  that 
the  will  began  elsewhere,  only  the 
first  page  is  entitled  to  probate ; 
Royle  V.  Harris,  (1895)  P.  163. 
Where  testator  and  witnesses  sign  at 
the  bottom  of  the  first  page  after  an 
unfinished  .sentence  which  goes  over 
to  another  page,  only  the  first  page 
ia  entitled  to  probate.  Anstee'a 
Goods,  (1893)  P.  283.  See  (1892) 
P.  377. 

1.  In  1  Wms.  Exrs.  80,  81,  the  de- 
cisions on  these  statutes  of  Victoria, 
relative  to  signing  at  the  foot,  etc., 
are  quite  fully  cited.  The  Wills 
Amendment  Act  of  1852,  §  1,  declares 
expressly  tliat  no  signature  shall  be 
operative  to  give  effect  to  any  dispo- 
sition  or    direction    which    is    under- 


neath or  which  follows  it.  But  it  is 
held  that  where,  from  the  obvious 
sequence  and  sense  of  the  context,  it 
appears,  to  the  satisfaction  of  the 
court,  that  the  signature  of  the  de- 
ceased really  followed  the  disposing 
part  of  the  will,  the  instrument  will 
be  entitled  to  probate  without  lite;al 
regard  to  the  place  it  may  occupy 
above  on  the  paper.  Kimpton's 
Goods,  3  Sw.  &  Tr.  427.  In  one  case 
the  will  of  the  deceased  had  an  im- 
perfect attestation  clause,  and  the 
name  of  the  testator  appeared  writ- 
ten beneath  the  signatures  of  the  at- 
testing witnesses,  and,  both  witnesses 
being  dead,  no  evidence  could  be  given 
as  to  the  order  in  which  the  sig- 
natures were  made.  Nevertheless 
the  will  was  admitted  to  probate. 
Puddephate's  Goods,  L.  R.  1  P.  &  D. 
97. 

In  order  to  obviate  a  statute  objec- 
tion that  the  will  was  not  signed  at 
the  foot  or  end,  the  court  has  in  some 
instances  felt  justified  in  regarding  a 
portion  running  below  the  signature 
as  forming  no  part  of  the  will,  and 
granting  probate  exclusive  of  that 
portion.  See  1  Wms.  Exrs.  80,  and 
numerous  citations;  1  Robert.  189, 
424,  638,  755;  2  Robert.  116.  Thus  a 
testator,  after  signing  his  name  to 
his  will  in  presence  of  two  witnesses, 
added  a  clause  to  it,  the  writing  be- 
ing crowded  into  the  space  above  and 
beside  the  signature.  Innnodialely 
afterwards  the  witnesses  signed  their 
names.  The  court  granted  probate  of 
the  will  exclusive  of  this  clause,  on 


;78 


CHAP.  II.] 


SIGNATURE  BY  THE  TESTATOR. 


312 


§  312.  Position  of  the  Signature;  American  Rule. 

The  statutes  of  several  American  States  expressly  require  the 
testator  to  sign  his  name  at  the  end  of  the  will ;  as  in  New  York, 
Pennsylvania,  Ohio,  Kansas,  California,  and  Arkansas.^  And  un- 
questionably this  is  the  most  natural  and  proper  place  of  signa- 
ture; the  attestation  clause  following,  if  there  be  one.  But  most 
of  our  codes  are  silent  on  this  point ;  and  the  principle  which  they 
inculcate  is,  rather,  that  the  place  of  signature  is  of  secondary  con- 
sequence, .provided  only  that,  wherever  the  testator  may  have 
chosen  to  place  his  name,  he  meant  it  to  stand  for  his  final  signa- 
ture, and  thereby  authenticate  the  entire  instrument  as  pro- 
pounded.* 


the  ground  that  the  testator  did  not 
sign  or  acknowledge  his  signature  to 
the  will  as  containing  it.  Arthur's 
Goods,  L.  R.  2  P.  &  D.  273.  But 
where  the  last  sentence  containel  in 
a  will  executed  by  the  deceased  com- 
menced immediately  above  his  signa- 
ture, and  was  continued  in  three 
short  lines  to  the  left  and  extending 
slighly  below  the  signature,  this 
sentence  was  included  in  the  probate, 
the  evidence  showing  that  it  was 
written  in  before  the  testator  signed, 
and  that  the  attestation  act  followed. 
Ainsworth's  Goods,  L.  R.  2  P.  &  D. 
151.  And  see  Woodley's  Goods,  3 
Sw.  &  Td.  429. 

In  Hunt  V.  Hunt,  L.  R.  1  P.  &  D. 
209,  a  will  ended  in  the  middle  of  the 
third  page  of  a  sheet  of  foolscap,  and, 
the  lower  half  of  the  page  being  left 
blank,  the  attestation  clause  and  the 
signatures  were  written  on  the  top 
of  the  fourth  page.  It  was  held  that 
the  will  was  duly  executed.  See 
Hughes's  Goods,  12  P.  D.  107;  Mar- 
gary  v.  Robinson,  12  P.  D.  8. 

2.  1  Jarm.  Wills,  105,  Bigelow's 
note;    Hewitt's   Will,    91   N.   Y.    261, 

3' 


106  Am.  St.  Rep.  53;  Strieker  v. 
Groves,  5  Whart.  386:  1  Wms.  Exrs. 
77,  Perkins's  note;  Soward  v.  Sow- 
ard,  1  Duv.  126;  Glancy  v.  Glancy, 
17  Ohio  St.  124.  And  as  to  wills  of 
real  estate  in  New  Jersey,  see  Combs 
V.  Jolly,  2  Green  Ch.  625,  80  P.  654. 

3.  The  rule  is  essentially  that 
under  the  English  Statute  of  Frauds, 
upon  which  our  wills  acts  are  based. 
Supra,  §  311;  Hall  v.  Hall,  17  Pick. 
373;  Upchurch  v.  Upchurch,  16  B. 
Mon.  102;  Ramsey  v.  Ramsey,  12 
Gratt.  664;  Adams  v.  Field,  2a  Vt. 
256,  65  Am.  Dec.  254;  Armstrong  v. 
Armstrong,  29  Ala.  538;  103  III.  App. 
528;  Warwick  v.  Warwick,  86  Va. 
596,  6  L.  R.  A.  775,  10  S.  K  843;  78 
S.  E.  600,  115  Va.  160. 

The  objectionable  character  of  the 
old  English  doctrine  of  a  testator's 
signature,  in  construction  of  the 
Statute  of  Frauds,  is  well  pointed  out 
in  a  Virginia  case  (1890).  The  Vir- 
ginia courts  had  followed  reluctantly 
the  old  English  rule,  which  made  a 
testator's  name  written  by  him  in 
the  body  of  the  paper  serve  as  a  final 
execution;  thus  depriving  the  instru- 

9 


§  312 


LAW   OF  WILLS. 


[PAET  III. 


From  either  legal  standpoint,  anything  which  appears  to  have 
been  interpolated,  added,  or  altered  after  the  signature  was  affixed 
to  the  will  fails  of  authentication  unless  adopted  by  the  maker 
before  his  will  is  acknowledged,  attested  and  completely  executed ; 
nor  should  his  signature  take  effect  at  all  unless  fully  intended  by 
him  as  such ;  and  the  only  radical  difference  in  policy  in  our  codes 
appears  to  consist  in  the  formal  precautions  which  the  legislature 
may  have  taken  to  prevent  either  apprehended  mischief.  Each 
State  jurisdiction  must  here  furnish  its  own  criterion.* 


ment  of  all  proof  upon  its  face  that 
the  testamentary  intent  was  final. 
At  length  in  1850  was  enacted  in  this 
State  a  statute,  based  upon  the  Eng- 
lish act  of  1  Vict.  c.  26,  which  re 
quired  that  the  signature  should  be 
"  in  such  a  manner  as  to  make  it 
manifest  that  the  name  is  intended  to 
be  as  a  signature."  Under  tins  latter 
enactment,  where  a  paper  wholly  in 
the  testator's  handwriting  began  "  I, 
A.  B.,  declare  this  to  be  my  last  will 
and  testament,"  but  no  where  else 
contained  the  testator's  signature,  it 
was  held  that  there  was  no  valid  will, 
notwithstanding  the  document  was 
enclosed  in  a  sealed  envelop*  on  which 
was  written  in  the  testator's  hand- 
writing, "  My  will,  A.  B.'  Warwick 
V.  Warwick,  86  Va.  596,  6  L.  R.  A. 
775,  10  S.  E.  843. 

As  for  StaU"S  whose  codc«  originat- 
ed in  the  civil  'aw,  tliere  are  special 
reasons  why  the  testator's  name  in 
the  body  of  the  writing  should  not  be 
treated  as  a  signature  when  not  in- 
t<jnded  as  such,  even  though  the 
writer  supposed  no  signature  neces- 
sary. In  a  m^Mlern  Louisiana  case 
this  doctrine  is  deduced  from  the 
famous  code  of  the  State.  That  code, 
art.    1588,    provides   that    holographic 


wills  shall  be  "  entirely  written, 
dated,  and  signed,  in  the  handwriting 
of  him  or  those  making  them."  This 
article  was  copied  from  the  Code  Na- 
poleon, which  in  turn  was  taken  from 
an  ordinance  of  Louis  XV.  The  juris- 
prudence of  France  has  been  uniform- 
ly to  the  effect  that  the  signature 
must  be  at  the  end  of  the  testa«nent> 
or,  at  least,  that  no  disposition  fol- 
lowing the  signature  can  avail  as  a 
will.  Armant's  Will,  43  La.  Ann. 
310,  26  Am.  St.  Rep.  183,  9  So.  50. 
Cf.  §  255,  supra,  and  cases  cited. 

4.  Some  late  New  York  cases  apply 
the  local  statute,  which  requires  the 
will  to  be  signed  and  witnessed  at 
the  end,  so  as  to  reject  what  may  hap- 
pen to  follow  these  signatures  as 
constituting  no  part  of  the  will.  A 
will  was  written  upon  two  sides  of  a 
piece  of  paper  and  signed  by  the  wit- 
nesses at  the  bottom  of  the  first  and 
at  the  top  of  the  second  side.  An 
important  provision  followed  these 
last  signatures,  and  it  was  held  that 
the  execution  did  not  embrace  it. 
Hewitt's  Will,  91  N.  Y.  261.  An  im- 
jwrtant  provision  upon  the  fourth 
page  of  a  will  following  a  signature 
and  attestation  at  the  foot  of  the 
third    page   was   likewise   rejected  in 


180 


CHAP,  II.]  SIGNATURE  BY  THE  TESTATOR.  §    312 

Some  American  cases  seem  to  consider  tliat  the  testator's  pur- 


toto  from  the  probate;  nor  would  the 
court  consent  to  treat  that  provision 
as  an  interlineation,  nor  as  valid  in 
part  and  invalid  in  part.  O'Neil's 
Will,  91  N.  Y.  516.  See  also  Conway's 
Will,  124  N,  Y.  455,  11  L.  R.  A.  796, 
28  N.  E.  1028,  where  (three  judges 
dissenting)  an  execution  at  the  end 
of  the  first  page  where  the  will  was 
•continued  to  the  second  page,  with 
reference  back  was  held  invalid.  95 
N.  Y.  145  ■was  here  distinguished. 
See  further  Whitney's  Will,  153  N. 
Y.  259,  47  N.  E.  272,  60  Am.  St.  Rep. 
616,  where  the  will  was  signed  at  the 
foot  of  the  printed  blank  to  which 
other  slips  were  attached. 

So,  too,  in  Andrews'  Will,  56  N.  E. 
529,  162  N.  Y.  1,  48  L.  R.  A.  662,  76 
Am.  St.  Rep.  294,  a  will  with  several 
pages  could  not  be  read  consecutively 
without  skipping  backward  and  for- 
ward as  to  the  signature,  and  probate 
was  refused. 

The  recent  case  of  Field's  Will,  204 
N.  Y.  448,  97  N.  E.  881,  limits,  how- 
ever, and  distinguishes  these  two  last 
cases,  allowing  probate  where  on  a 
short  form  blank,  the  testator  had 
fastened  six  slips  of  bequests  which 
could  be  read  in  dtie  order,  as  in  the 
month  slips  on  a  calendar.  "  Form," 
says  the  court,  "  should  not  be  raised 
above  substance  in  order  to  destroy 
a  will;  "  the  substantial  thing  being 
whether  a  paper  reads  straight  for- 
ward and  without  interruption  from 
beginning  to  end.  And  see  Stinson's 
Estate,  77  A.  807,  228  Penn.  475 
(skipping  a  page  and  then  going  back 
on  a  blank  page  to  finish  and  exe- 
cute). The  logical  end  of  the  dispo- 
sition, wherever  it  appears,  aad  not 

38 


necessarily  the  point  farthest  re- 
moved from  the  beginning,  is  the 
"end."  lb.  Cf.  142  N.  Y.  S.  1074 
(not  "  at  end  "). 

In  Kentucky,  it  is  held  that  where 
all  the  names  must  appear  at  the  end 
of  a  will,  a  signature  by  the  testntor, 
so  separated  by  turning  a  sheet  from 
that  of  the  witnesses  and  from  the 
body  of  the  will  itself,  that  fraudu- 
lent additions  might  be  made  to  the 
instrument,  is  not  a  valid  execution. 
One  object  of  such  a  statute,  it  is 
here  said,  is  to  prevent  fraudulent  ad- 
ditions from  being  made  to  a  will. 
Soward  v.  Soward,  1  Duv.  126.  But 
no  rule  can  be  laid  down  as  to  what 
is  an  unreasonable  or  unnecessary 
blank  space  in  such  cases.     lb. 

We  apprehend  that  under  legisla- 
tion like  the  above,  American  courts 
of  probate  will  show  no  less  solici- 
tude than  the  English  tribunals,  to 
protect  a  clause  crowded  at  the  foot 
of  a  will  about  the  signature  of  the 
testator,  without  too  literal  a  con- 
struction of  the  statute,  provided  the 
fact  of  its  insertion  before  the  execu- 
tion of  the  will  clearly  appears  and 
no  suspicion  of  bad  faith  or  reckless 
error  in  signing  clings  to  the  trans- 
action. 

Where  the  final  clause  of  a  will 
which  appoints  an  executor  appears 
below  the  testator's  signature,  the 
question  of  whether  the  will  is  in- 
valid, or  such  clause  surplusage,  de- 
pends upon  when  it  wa.s  inserted.  6 
Dem.  298.  But  if  the  will  was  all 
prepared  at  one  time  for  execution, 
and  the  testator's  signature  precedes 
the  final  clause  which  appoints 
executors,  the  will  is  not  signed  "  at 

1 


§    312  LAAV  OF  WILLS.  [pAET  III. 

pose  and  intention  to  sign  must  appear  on  the  face  of  the  will ;  ^ 
but  tiis  is  perhaps  too  narrow  a  view  to  take.  Where,  indeed,  the 
testator's  name  was  written  only  at  .the  commencement  of  the  will, 
the  end  being  left  blank,  and  nothing  on  the  face  of  the  paper  indi- 
cates affirmatively  that  he  intended  it  as  his  signature,  the  pre- 
sumption may  well  be  that  in  the  legal  and  natural  sense  he  did 
not  sign.®  But  his  subscription  at  the  end,  not  of  the  testimonium, 
but  of  the  attestation  clause  (or  in  the  midst  of  the  latter)  indi- 
cates the  contrary  rather;^  and  such  a  subscription  accompanied 
by  attestation  is  even  held  to  comply  with  a  statute  which  requires 
the  subscription  to  be  "  at  the  end  of  the  will."  *  The  acknowledg- 
ment of  the  instrument  before  attesting  witnesses  (who  subscribe 
their  names),  without  alluding  to  any  further  act  of  signing  or 
otlierwise  qualifying  the  execution,  may  now  be  taken  as  a  strong 
circumstance  in  favor  of  intended  signature,  wherever  the  maker's 
name  may  be  found ;  for  if  he  fails  to  sign  in  due  form,  it  is  prob- 
ably through  inadvertence;  and,  vice  versa,  his  signature  without 
attestation  can  avail  little  in  modem  policy.  And  there  seems  no 
reason  why  the  surrounding  circumstances  of  execution  may  not  be 
investigated  to  resolve  a  doubt  and  conclude  the  issue  justly  by  the 
evidence.^      For  after  all  these  statute  precautions    the    integrity 

the  end  thereof,"  within  the  require-  19.      A   signature    is   placed   "  at   the 

ment  of  the  local  statute.  Wineland's  end"     of     a     will     sufficiently,     even 

Appeal,  118  Penn.  St.  37,  4  Am.   St.  though    the    testator,    before    signing 

Rep.    571,    12   A.    301.      See,    further,  in   the  proper  place,  wrote  after  the 

Taylor's  Estate,  79  A.  632,  230  Penn.  attestation  clause  a  direction  that  his- 

St.  346;   Stinson's  Estate,  77  A.  807,  executor  need  not  give  bond;  this  be- 

228  Penn.  475.  ing  deemed  no  essential   part  of  the 

5.  See  Waller  v.  Waller,  1  Gratt.  will  itself.  Baker  v.  Baker,  51  Ohio 
454;    Graham    v.    Graham,    10    In-d.  St.  217,  37  N.  E.  125. 

219;  1  Wms.  Exrs.  77,  Perkins's  note.  9.  Where  the  statute   requires   the 

6.  Ramsey  v.  Ramsey,  13  Gratt.  will  to  be  signed  "  at  the  end "  and 
664.  Cf.  Watts  v.  Public  Admr.  4  witnessed,  and  it  appears  in  a  case 
Wfjnd.   168.  that   the   testator   alone   signed,    and 

7.  Hallowell  v.  Hallowell,  88  Ind.  called  later  for  his  will  "  to  finish 
2r,].  See  190  Penn.  St.  382,  42  A.  it,"  added  a  bequest  and  then  had  the 
1020    (imperfect  execution).  witnesses  sign,  without  signing  anew, 

8.  Youngor  v.  DufTie,  94  N.  Y.  535;  the  whole  will  must  be  held  invalid. 
Cohen's   Will,    1   Tuck.   286;    5   Dem.  Glancy  v.  Glancy,  17  Ohio  St.  134. 

382 


CHAP.  II.]  SIGNATURE  BY  THE  TESTATOR.  §    314 

and  genuineness  of  tlie  instrument  should  be  the  main  concern  at 
the  probate,  and  whatever  the  testator  may  have  added  to  his  will 
after  a  full  attestation  clause  may  usually  be  left  out  of  probate 
as  surplusage  and  immaterial.^ 

§  313.  Whatever  the  Place,  a  Signing  must  have  been  intended. 
Whatever  the  local  position  of  the  signature  by  statute  permis- 
sion, the  true  principle  is,  that  it  must  have  been  placed  there  with 
the  design  of  finally  authenticating  the  instrument,  no  further  sig- 
nature on  the  maker's  part  being  contemplated.  A  name  origin- 
ally written  without  such  final  design  may,  it  is  true,  have  that 
final  effect  afterwards,  by  the  testator's  subsequent  adoption  of  the 
signature  as  his  final  one;  and  such  would  probably  be  pre- 
sumed his  intention  if  he  acknowledged  the  instrument  as  his  will 
to  the  attesting  witnesses  without  alluding  to  any  further  act  of 
signing.^  But  if,  on  the  other  hand,  ithe  testator  intended,  to  the 
last,  another  signature  which  he  never  made,  the  will  should  be 
considered  as  unsigned ;  ^  and  so,  too,  it  would  appear,  if  the  testa- 
tor supposed  no  signature  at  all  essential ;  to  say  nothing  of  the 
will's  incomplete  execution  in  other  respects  which  the  statute 
made  essential. 

§  314.  One  Signature  or  more  for  Several  Sheets. 

One  signature  may  suffice  for  several  sheets  of  paper;  and  tho 
natural,  if  not  the  imperative  place  for  signing  is  where  the  will 
ends  on  the  last  sheet;  though,  as  a  precaution  against  fraud,  a 
maker  sometimes  places  his  name  on  the  consecutive  sheets.  The 
fasitening  together  of  tlie  sheets  as  found  at  the  testator's  death,  is 

1.  Baker  v.  Baker,  supra;  65  A.  v.  Eamsey,  13  Gratt.  664.  See  Phe- 
799,  216  Penn.  350;  O'Neil's  Will,  lan's  Estate,  87  A.  625,  82  N.  J.  Eq. 
91  N.  Y.  516.  316     (signature    in     the    attestation 

2.  1  Jarm.  Wills,  79.  SemUe,  the  clause)  ;  Young's  Will,  141  N.  W.  226, 
intention  to  sign  again  may  be  shown  153  Wis.  337. 

by  parol  evidence,  where  doubt  is  left  3.  1   Jarm.   Wills,   79.     This   point 

on  the  face  of  the  will,  as  a  founda-      was   apparently   decided   in   Right   v. 
tion    (for    admitting    proof    aliunde.      Price,  1  Dougl.   (Mich.)   241. 
Eight  V.  Price,  1  Dougl.  241;  Ramsey 

383 


§    317  LAW   OF   WILLS.  [pAET  III. 

presumed  to  be  the  same  as  when  the  will  was  executed ;  and  in 
absence  of  proof  to  the  contrary,  their  identity  and  consecutive 
order  should  be  taken  accordingly,  as  constituting  tlie  full  and 
genuine  will  of  the  deceased,*  But  the  question  whether  or  not  all 
the  sheets  of  the  will  as  propounded  were  attached  at  the  time  of 
signature,  or  there  has  been  a  fraudulent  or  informal  change  since, 
is  to  be  decided  as  an  issue  of  fact  upon  all  the  evidence.^ 

Where  the  testator  signs  the  will  on  several  sheets,  or  in  different 
places,  the  last  signature,  if  at  the  end  of  the  will,  is  the  efficient 
one.^ 

§  315.  One  Signature  where  Will  has  been  written  by  Portions. 

Where,  again,  it  appears  that  a  will  has  been  written  by  por- 
tions, various  clauses  being  composed  and  inserted  at  different 
times,  one  signature  and  attestation  applies  suJfficiently  to  each 
and  all  of  the  dispositions  contained  in  the  instrument  as  they 
finally  stood  at  the  date  of  execution.^ 

§  316.  Signatures  may  be  upon  Paper  fastened  to  the  Will. 

A  valid  signature  may  be  made  on  a  separate  piece  of  paper 
which  is  sluck  or  fastened  to  the  body  of  the  will,  and  contains 
nothing  but  the  signature  and  attestation;  ^  provided  it  be  shov^rn 
that  the  execution  was  bona  fide  and  regular  in  other  respects,  and 
the  paper  duly  fastened  at  or  before  the  time  of  attestation.* 

§  317.   Wills   of   Blind,    Disabled   and    Illiterate    Persons;    how 
made  known  to  them. 

The  civil  law  required  that  the  written  will  of  a  blind  person 

4.  Rees  v.  Rees,  L.  R.  3  P.  &  D  6.  Evans's  Appeal,  58  Penn.  St. 
84 ;  Marsh  v.  Marsh,  1  Sw.  &  Tr.  528 ;       238. 

Tonnele  v.   Hall,  4   Comst.   140;    Wi-  7.  CattralFs    Goods,    4    Sw.    &    Tr. 

kofT's   Appeal,    15   Penn.    St.    281,    53  419. 

Am.    Dec.    597;    Ela  v.   Edwards,    16  8.  Horsford   Re,   L.   R.    3    P.   &   D. 

Cray,     91;     Martin    V.     Hamblin,     4  211;   2  Sw.  &  Tr.  362;   Cook  v.  T^ra- 

Strobh.   188;    §   284   »upra  and  cases  bert,  3  Sw.  &  Tr.  46. 

cited.  9.  32    L.    J.    Prob.    182;     1    Jaim. 

5.  Ginder  v.  Farnum,  10  Penn.   vSt.  Wills,  79. 
98. 

384 


CHAP.  II.] 


SIGNATURE  BY  THE  TESTATOR, 


§  317 


should  be  read  over  to  him  and  approved  by  him  in  presence  of 
the  subscribing  w^itnesses/  Our  common  law  lays  down  no  such 
imperative  rule,  but  with  regard  to  both  blind  and  illiterate,  and 
all  who  cannot  read  what  is  written  out  as  their  will,  requires  sat> 
isfactory  proof  of  some  kind  to  the  effect  that  the  testator  knew 
and  approved  of  the  contents  of  the  will  which  was  executed  as  his 
own."  Such  a  will  may  be  read  over  to  the  testator  before  signing, 
apart  from  his  witnesses;  ^  or  it  may  be  shown  that  the  contents 
were  correctly  made  known  to  him  without  any  formal  reading  at 
all;'*  provided  it  appear,  on  the  whole,  that  the  instrument  as 
drawn  up  and  executed  constituted  his  own  testamentary  disposi- 
tion as  intended  by  him.^  Less  than  this,  however,  is  unaccept- 
able; and  where  th^  will,  without  being  read  over  or  examined,  is 
signed  by  the  testator  upon  an  assurance  that  it  has  been  prepared 
according  to  Lis  instructions,  when  in  point  of  fact  it  has  not  been, 


1.  1  Wms.  Exrs.  19;  Swinb.  pt.  2, 
§  11. 

2.  lb.;  Axford  Re,  1  Sw.  &  Tr.  540; 
2.  Gas.  temp.  Lee,  595;  Martin  v. 
Mitchell,  28  Geo.  382;  Wampler  v. 
Wampler,  9  Md.  540;  Day  v.  Day,  2 
Green  Ch.  (N.  J.)  549;  3  Phillim. 
455,  note;  6  Dem.  478;  Worthington 
V.  Klemm,  144  Mass.  167,  10  N.  E. 
522;  Ray  v.  Hill,  3  Strobh.  297;  King 
V.  Kinsey,  74  N.  C.  261.  Having  the 
will  read  over  in  presence  of  the  v^it- 
nesses  and  then  executing  is  a  good 
fulfilment  of  requirements  under  the 
New  York  code,  in  case  of  the  blind. 
See  Moore  v.  Moore,  2  Bradf.  (N.  Y.) 
"261. 

3.  Martin  v.  Mitchell,  28  Geo.  382; 
Wampler  v.  Wampler,  9  Md.  540;  2 
Dev.  Law,  291. 

4.  1  Wms.  Exrs.  19;  Fincham  v. 
Edwards,  3  Curt.  63;  4  Moore  P.  C. 
198;  Boyd  v.  Cook,  3  Leigh.  32; 
Hess's  Appeal,  43  Penn.  St.  73,  82 
Am.  Dec.  551;  11  Phila.  161.     See  19 

25  38. 


N.  E.  503,  111  N.  Y,  624;  57  S.  W. 
526,  157  Mo.  1,  80  Am.  St.  Rep    604. 

We  need  hardly  observe  that  it  be- 
hooves every  testator  who  is  illiter- 
ate, blind,  or  otherwise  much  depend- 
ent upon  the  accuracy  and  good  faith 
of  those  about  him,  to  be  especially 
heedful  that  his  last  wishes  are  cor- 
rectly expressed  in  the  instrument 
which  he  executes,  and  that  no  fraud 
or  imposition  is  practised  upon  him. 

The  court,  moreover,  should  take 
especial  care  to  avoid,  in  such  cases, 
rulings  upon  the  point  of  capacity  or 
free  will  which,  though  abstractly 
correct,  might  mislead  the  jury. 
Bull's  Will,  111  N.  Y.  624. 

5.  See  Perera  v.  Perera,  (1901) 
App.  Cas.  354  (will  drawn  in  strict 
accord  with  instructions  sufficient)  ; 
Masseth's  Estate,  62  A.  640,  213 
Penn.  136;  Beyer  v.  Hermann,  73  S. 
W\  164,  173  Mo.  295  (true  copy  of 
authentic  draft) . 


§  317a  LAW  OF  WILLS.  [PAET  III^ 

probate  should  be  refused.®  Corresponding  considerations  may 
apply  to  t-he  wills  of  those  who  are  deaf,  but  not  blind ;  and  a  tes- 
tator of  this  latter  description  would  fitly  assure  himself  that  the 
instrument  is  correct  by  reading  it  over  instead  of  having  it  read 
to  him,  or  by  writing  it  out  himself ;  and  here,  once  more,  the  con- 
trolling question  would  be  whether  the  instrument  in  question  em- 
braced his  testamentary  intentions. 

The  genuine  and  authentic  will  of  an  illiterate  person  is  to  be 
probated  and  sustained  in  its  fair  scope  and  intendment  notwith- 
standing any  ungrammatical  or  unlearned  expressions.^ 

§  317a.  The  Testator's  Understanding  on  the  issue  of  Execution. 

The  declarations  of  a  testator,  before  or  after  making  a  will,  are 
in  general  inadmissible  on  the  issue  of  its  execution.^  And  evi- 
dence of  one's  statements  of  his  intentions  made  long  before  mak- 
ing his  will,  or  under  remote  circumstances,  is  properly  excluded.^ 
The  presumption  is  that  any  adult  tesitator  who  signs  knew  and 
approved  the  contents  of  his  will  and  executed  it  imderstand- 
ingly ;  ^  but  he  need  not  have  known  the  true  legal  and  technical 
effect  of  its  provisions.^ 

6.  Waite  v.  Frisbie,  45  Minn.  361,  influence,  etc.,  §§  193-195,  243,  244. 
47  N.  W.  1069.  And  see  §  403. 

7.  See  Mitchell  v.  Donohue,  100  9.  165  Mass.  493,  43  N.  E.  299 ;  108 
Cal.  202,  38  Am.  St.  Rep.  279,  34  P.  Cal.  608;  158  111.  314,  41  N.  E.  912. 
614.  But  of.  102  Mich.  568,  61  N.  W.  3. 

8.  Kennedy  v.  Upshaw,  64  Tex.  411,  1.  62  N.  E.  800,  194  111.  425  (a 
and  cases  cited;  80  P.  654;  Couch  v.  foreigner)  ;  73  N.  E.  338,  213  111.  552,. 
Eastham,  27  W.  Va.  796,  55  Am.  Rep.  104  Am.  St.  Rep.  234;  25  N.  W.  538, 
346;  Walton  v.  Kendrick,  122  Mo.  64  Wis.  487,  54  Am.  Rep.  640;  37  S. 
504,  25   L.  R.  A.   701,  27   S.  W.   872.  C.  348,  16  S.  E.  38. 

See  aa  to  mental  capacity,  or  undue  2.  Conrades    v.    Heller,    87    A.    28^ 

119  Md.  448. 

386 


CHAP.  III.]  ATTESTATION  AND  SUBSCBIPTION,  §    318 

CHAPTER   III. 

ATTESTATION  AND  SUBSCRIPTION   BY  WITNESSES. 

§  318.  Attestation  or  Subscription  independently  of  Statute. 

In  England  wills  of  personal  property  made  before  January  1, 
1838,  needed  no  atte-station  or  subscription  in  order  to  operate;^ 
custody  was  their  sufficient  publication,  althougb  it  was  safer  and 
more  prudent,  as  the  jurists  used  to  say,  and  left  less  in  the  breast 
of  the  ecclesiastical  judge,  if  they  were  published  in  the  presence 
of  witnesses.^  Some  of  the  older  authorities,  indeed,  were  sup- 
posed to  lay  it  down  that  a  publication  before  two  witnesses  was 
indispensable ;  but  what  they  meant  was  probably  to  recommend  so 
prudent  a  course,  or  else  to  refer  to  that  fundamental  rule  of  the 
civilians  which  required  two  witnesses  to  prove  every  fact.^  That 
the  testament  itself  had  to  be  subscribed  by  two  or  more  witnesses, 
or  a  single  one,  to  give  it  validity,  was  neither  affirmed  nor  pre- 
tended.^ 

But  witnesses  were  often  called  in,  nevertheless,  to  attest  one's 
will ;  and  after  the  Statute  of  Frauds  rendered  such  attestation 
necessary  for  wills  of  real  estate,  it  became  quite  common  for  a 
testator  to  waive  the  legal  exemption  in  favor  of  his  personalty, 
and  guard  the  final  disposition  as  a  whole  by  a  subscription;  his 
three  witnesses  signing  their  names  after  an  attestation  clause. 
Hence  came  the  rule,  that  where  an  instrument  drawn  up  as 
one's  will  professed  to  dispose  of  both  real  and  personal  prop- 
erty, or  even  personalty  alone,  but  an  attestation  clause  was  ap- 
pended without  signatures,  it  should  be  presumed  that  the  testa- 
mentary intention  never  took  full  effect.^     But  this  rule  was  one 

1.  1  Wms.  Exrs.  84.  4.  Brett    v.    Brett,    3    Add.    224;    1 

2.  Com.  Rep.  452;  Miller  v.  Brown,      Wms.  Exrs.  85. 

2  Hagg.  211.  5.   1    Wms.    Exrs.    85;    1    Add.    154, 

3.  1  Wms.  Exrs.  84,  citing  Bracton,  159 ;  Walker  v.  Walker,  1  Meriv.  503 ; 
lib.  2,  f.  61;  Fleta,  lib.  2.  f.  125;  Mathews  v.  Warner,  4  Ves.  186:  5 
Swinb.  pt.  1,  §  3,  pi.  13;  Godolph.  pt.  Ves.  23.  Where  there  was  no  regular 
1,  c.  21,  §  1.  attestation  clause,  but  only  the  word 

387 


§    310  LAW   OF   WILLS.  [pART  III. 

of  presumption  merely,  proceeding,  of  course,  upon  the  theory 
that  the  incomplete  execution  showed  an  incomplete  purpose;  and 
this  presumption  might  be  repelled  by  slight  evidence,  showing  that 
in  fact  the  testator  had  intended  it  to  operate  without  an  attesta- 
tion, so  far,  at  least,  as  his  personal  property  was  concerned,  or 
that  act  of  God  prevented  him  from  finishing  the  instrument  to 
which  his  mind  had  fully  and  finally  assented.® 


§  319.  Attestation  under  Modern  Statutes. 

As  to  wills,  however,  which  are  made  at  the  present  day  in  com- 
pliance with  modern  statutes,  the  rule  of  attestation  by  subscribing 
witnesses  is  far  more  widely  imperative.  Thus  in  England,  by 
the  modern  Wills  Act,  1  Vict.  c.  26,  sec.  9,  it  is  enacted  that  no 
will  made  on  or  after  January  1,  1838,  shall  be  valid,  unless  the 
signature  is  "  made  or  acknowledged  by  the  testator  in  the  pres- 
ence of  two  or  more  witnesses  present  at  the  same  Lime;  and  these 
witnesses  are  to  attest  and  subscribe  the  will  in  the  testator's  pres- 
ence, no  particular  form  of  attestation,  however,  being  necessary.^ 
As  for  any  will  or  devise  of  real  estate,  the  Statute  of  Frauds,  29 

"  witnesses,"   non-attestation   by   wit-  with    attestation    by    witnesses    alto- 

nesses   afforded    a   much    slighter    in-  gether,    provided   the   will   be   wholly 

ference    of    incomplete    testamentary  written  out,  signed,  and  dated  by  the 

purpose.     Doker  y.  Goff,  2  Add.  42.  testator.      Supra,    §    255.      Hence    in 

6.  Buckle    V.     Buckle,     3     Pliillim.  Virginia   such    a   will    has    been    sus- 

323;    1   Wms.   Exrs.  85,  86;    1  Hagg.  tained   as   valid   even   though   it  con- 

252,  551,  596,  698.  tained  an  unsigned  attestation  clause. 

A  first  step  was  taken  by  the  codi-  And  another  paper  of  a  testamenta-y 

fiers  in  some  of  our  States,  towards  character,  bearing  the  same  date,  and 

requiring  attestation  in  all  wills,  by  found  folded  up  with  such  will,  and 

a  statute  which  prescribed  full  form-  similarly    written    and    signed,    was 

alities  of  execution,  not  only  for  de-  pronounced  a  valid  codicil.     Perkina 

vises,  but  where  a  will  purported  to  v.  Jones.  84  Va.  358.    And  see  Soher's 

di.spase    of    both    real    and    personal  Estate,  78  Cal.  477,  which  disinclines 

property.     See  15  Pick.  393.  to  treat  one  witness's  signature  to  a 

Holograph   wills,   as  we  have  seen,  holograph    will    as    amounting   to   an 

which   make  a  spooinl   feature  of  the  incomplete  attestation, 

legislation  of  various  States,  dispense  7.  See  Appx. ;  1  Wms.  Exrs.  preface. 

388 


CHAP.  III.J  ATTI'^STATION  AND  SUBSCRIPTION.  §    319 

Car.  II,  c.  3,  had  for  a  century  and  a  half  made  the  attestation  of 
at  least  three  witnesses  indispensable.^ 

A  comparison  of  the  language  used  in  these  two  great  enactr 
ments  will  show  various  important  points  of  difference  between 
them.  The  most  obvious  one  is,  that  two  witnesses  sufficiently 
attest  all  wills  made  after  the  year  1837,  whether  relating  to  real 
or  to  personal  property,  or  to  both ;  three  witnesses  being  no  longer 
requisite  for  any  will  or  devise.  Other  points  fox  comparison  will 
uppear  in  the  course  of  this  chapter.® 

In  the  several  American  States  will  be  found  local  statutes  witli 
corresponding  differences  of  detail;  so  that  no  single  principle  can 
be  laid  down  to  embrace  the  entire  doctrine.  Witnesses  vary  in 
number ;  in  some  States,  as  under  the  old  Statute  of  Frauds,  they 
are  to  "attest  and  subscribe"  the  will,  and  nothing  is  said  about 
requiring  a  testator  to  "  make  or  acknowledge  "  the  will  or  his  sig- 
nature in  their  presence;  nor  do  all  States  insist  that  all  the  wit- 
nesses shall  attest  and  subscribe  in  the  presence  of  one  another, 
but  merely  in  the  presence  of  the  testator,  another  feature  copied 
from  the  earlier  English  enactment.  In  fact,  our  American  wills 
acts  appear  based  in  expression  less  upon  the  act  of  Victoria  than 
that  of  Charles  II. ;  yet  they  vary  quite  as  widely  in  details  as  do 
these  English  enactments,  and  the  latest  tendency  conforms  more 
to  the  statute  of  Victoria,  or  to  that  of  the  New  York  code,  which 
is  somewhat  similar.^ 

8.  A  will  of  lands,  under  the  S*^at-  earlier  statute,  but  it  does  not  so 
ute  of  Frauds,  §  5,  must  be  "  attested  clearly  under  the  later.  And  as  to 
and  subscribed  in  the  presence  of  the  publication  and  form  of  attestation, 
devisor,  by  three  or  four  credible  the  statute  of  Victoria  has  special 
witnesses."  See  1  Wms.  Exrs  87;  1  provisions  not  found  in  the  Statute 
Jarm.  Wills,  77.  of  Frauds.     These  matters  will  be  ex- 

9.  The  Statute  of  Frauds  required  amined  presently. 

witnesses  to  attest  and  subscribe  the  1.  A  good  example  of  the  older 
will;  but  that  of  Victoria  requires  form  of  expression  is  found  in  the 
that  the  testator's  signature  be  Massachusetts  code,  which  requires 
"  made  or  acknowledged  "  in  their  the  will  to  be  "  attested  and  sub- 
presence.  Attestation  in  the  presence  scribed  in  his  (the  testator's)  pres- 
of  the  testator,  though  not  of  each  ence  by  three  or  more  competent  wit- 
other,  might  have  sufficed  under  the  nesses."     Mass.  Gen.  Stat.  c.  92,  §  6. 

389 


320 


LAW  OF  WILLS. 


[part  III. 


§  320.  Number  of  Subscribing  Witnesses  required. 

First,  then,  as  to  the  number  of  subscribing  witnesses  required. 
By  the  present  English  statute,  two  witnesses  at  least  are  requisite, 
whatever  the  kind  of  property  disposed  of.^  As  for  this  cou-Utry, 
there  must  be  (as  under  the  old  Statute  of  Frauds)  at  least  three 
witnesses  by  the  rule  now  or  lately  prevalent  in  most  parts  of  Xew 
England;  also  in  South  Carolina,  Florida,  and  Georgia.^  Two 
witnesses,  however,  now  sufiSce  in  the  majority  oi.  American  States, 
including  Rbode  Island,  New  York,  ISTew  Jersey,  Maryland  and 
most  of  the  Southern  and  Western  States.*  Upon  the  exceptional 
rules  of  various  Sta.tes  as  to  attestation  for  different  kinds  of  prop- 
erty or  non-attestation  when  a  hologi'aphic  will  is  made,  we  have 
already  touched.^  Agreeably  to  such  statute  policy  it  may  be  laid 
down,  in  general,  that  a  paper  is  void  as  a  will  when  executed  with 
less  than  the  number  of  witnesses  prescribed  by  local  statute  and 
that  not  even  a  probate  can  give  such  an  instrument  full  validity.® 


The  turn  of  this  phrase  is  like  that 
of  the  old  Statute  of  Frauds.  But 
the  New  York  enactment,  which  so 
many  other  legislatures  follow,  is 
expressed  in  various  sentences  em- 
bodying consecutive  directions,  viz. : 
the  subscription  shall  be  made  by  the 
testator  in  the  presence  of  each  of  the 
attesting  witnesses,  or  shall  be 
acknowledged  by  him  to  have  been 
so  made,  to  each  of  the  attestirg  wit- 
nesses; there  shall  be  a  declaration 
by  the  testator,  etc. ;  there  shall  be 
at  least  two  attesting  witnesses,  each 
of  whom  shall  sign  his  name  as  a 
witness  at  the  end  of  the  will  at  the 
request  of  the  testator.  2  N.  Y.  Rev. 
Stats,   p.   63,   §§    40,  41. 

See  §  255,  75  N.  E.  1020,  213  111. 
458;  70  P.  586;  65  Kan.  621.  The 
needless  addition  of  an  extra  witness 
beyond  the  local  statute  requirement 
does     not     invalidate    tlie    will,     but 


rather    the    reverse.      192    Penn.    St. 
263;   63  So.  188. 

2.  Acts  1  Vict.  c.  26,  and  29  Car. 
II.  c.  3,  §  5,  cited  preceding  section. 

3.  1  Jarm.  Wills,  77. 

4.  See  1  Jarm.  Wills,  77,  Bigelow's 
note;  also  the  various  local  codes, 
some  of  which  appear  to  have  re- 
duced the  number  of  indispensable 
witnesses  since  1870.  Cf.  also  for  late 
statutory  changes,  Stimson's  Am. 
Stat.  Law,  §  2644. 

Where  a  paper  purporting  to  be 
a  w^ill  is  signed  "  A  by  B  "  and  wit- 
nessed "  Witness  C,"  B  is  not  one  of 
the  two  subscribing  witnesses  witliin 
the  moaning  of  the  statute.  Peake  v. 
Jenkins,  80  Va.  293.  One  witness  to 
a  will  cannot  suffice,  as  our  codes 
.'itand  now.  Brengle  v.  Tucker,  80  A. 
224,  114  Md.  597  (whether  for  real 
of  personal  property)  ;  57  So.  743. 

5.  Supra,  §§   254-256. 

6.  Gay  v.  Sanders,  101  Ga.  601;  89 

390 


CHAP.  III.]  ATTESTATION  AND  SUBSCRIPTION".  §    321 

§  321.  Signing  or  acknowledging  before  the  Witnesses;  English 
Rule. 

Next,  we  consider  tlie  signing  or  ackuow]e<lgment  of  the  will 
before  the  witnesses.  Upon  tliis  point  is  found  a  difference  of 
statute  expression  and  hence  of  statute  construction,  which  is  of 
especial  consequence  where  the  testator  signs  his  will  and  then 
seeks  out  witnesses  afterwards.  The  old  Statute  of  Frauds  re- 
quired witnesses  to  attest  and  subscribe  the  will ;  which  was  inter- 
preted to  mean,  that  the  testator  was  not  obliged  to  sign  in  the 
presence  of  the  witnesses,  provided  he  made  before  them  a  due 
acknowledgment  of  the  instrument;  and,  furthermore,  that  a  due 
acknowledgment  in  fact  did  not  necessitate  his  acknowledging  in 
words  that  the  instrumeuit  was  his  will,  nor  apprising  the  witnesses 
in  any  way  of  the  nature  or  contents  of  the  instrument  they  were 
called  upon  to  attest.  A  testator's  declaration  before  three  wit- 
nesses that  the  instrument  produced  and  already  signed  by  him 
was  his  will,  was  equivalent  to  signing  it  before  them.^  And  more 
than  this,  though  he  merely  asked  the  witnesses  to  sign,  as  such, 
the  paper  he  produced  which  bore  his  signature,  and  they  did  so, 
neither  seeing  his  signature  nor  knowing  what  was  the  nature  of 
the  instrument  thus  attested,  the  statute,  nevertheless,  was  satis- 
fied ;  supposing  of  course  that  this  whole  transaction  imported  con- 
sistently the  full  testamentary  intent  on  his  part.^ 

But  the  statute  of  Victoria  uses  a  different  language.  The  execu- 

Ga.  490.  It  may  thus  happen  that  a  we  find  the  testator  knew  this  instru- 
will  signed  by  less  than  tlie  requisite  ment  to  be  his  will;  that  he  produced 
number  of  witnesses  may  fail  to  it  to  the  three  persons,  and  asked 
operate  as  to  real  estate,  but  hold  them  to  sign  the  same;  that  he  in- 
good  as  to  personalty.     32  Fla.  18.  tended  them  to  sign  it  as  witnesses; 

7.  Ellis  V.  Smith,  1  Ves.  Jr.  11,  that  they  subscribed  their  names  in 
overruling  Lord  Hardwicke's  doubt  his  presence,  and  returned  the  same 
expressed  in  Gryle  v.  Gryle,  2  Atk.  identical  instrument  to  him ;  we 
176;  Casement  v.  Fulton,  5  Moore  P.  think  the  testator  did  acknowledge  in 
C.  138.  fact,    though    not    in    words,    to    the 

8.  British  Museum  v.  White,  6  three  witnesses,  that  the  will  was 
Bing.  310;  7  Bing.  4,')7:  1  Rob.  14;  his."  Tindal,  C.  J.,  in  British  Mu- 
Gaze  V.  Gaze,  3  Curt.  451.     "  When  seum  v.  White,  supra. 

391 


§    321  LAW   OF   WILLS.  [pAKT  III. 

tion  here  prescribed  makes  "  the  signature,"  and  not,  as  before, 
''  the  will,"  the  subject  of  acknowledg;menit  in  presence  of  the 
-witnesses.  A  stricter  rule  of  construction  has  arisen  in  conse- 
quence, and  the  result  of  the  latest  cases  appears  to  establish :  (1) 
That  the  testaitor  sufficiently  acknowledges  his  signature,  where  he 
produces  the  will,  with  his  signature  visibly  apparent  on  its  face, 
and  requests  the  witnesses  to  subscribe  it;  ^  (2)  but  not  where  the 
witnesses  neither  saw  nor  could  have  seen  ;the  signature,  especially 
if  he  did  not  explain  the  instrument  to  them.^  And  stress  being 
here  laid  upon  the  signature,  the  main  requirement  is  that  the  wit- 
nesses saw  or  might  have  seen  it,  as  written  by  the  testator  con- 
sistently with  the  full  and  bona  fide  intent  on  his  part  of  executing 
his  will  then  and  there.  For  if  the  signature  was  visibly  apparent 
on  the  paper  thus  produced  to  them,  it  is  held  that  an  express  ac- 
knowledgment thereof  in  words  may  be  dispensed  with  on  the  tes- 
tator's part,  as  well  as  his  statement  that  the  paper  is  his  will ;  that 
he  may  be  reticent  as  to  both  nature  and  contents  of  the  instru- 
meu/t ;  ^  that  he  may  say  "  this  is  my  will,"  or  "  this  is  my  signa- 
ture," or  simply  ask  the  witnesses  to  put  their  names  under  his,  or 
request  them  to  sign  the  paper,  or  make  known  his  acknowledgment 
by  gestures.^  And  there  may  even  be  an  acknowledgment  by  some 
person  in  the  testator's  presence  under  circumstances  of  sanction 
and  adoption  by  the  latter,  so  as  to  satisfy  the  statute.* 

9.  1    Wms.     Exrs.     88,     and     cases  contra;  but  this  is  overruled  by  Gun- 
cited;  Huckvale's  Goods,  L.  R.  1  P.  &  stan's  Goods,  7  P.  D.  102. 
D.    378;    Davis    Re,    3    Curt.    748;    1  2.  Keigwin     v.     Keigvvin,     3     Curt. 
Jarra.  Wills.  108.  607;    Huckvale  Re,  L.   R.   1   P.   &  D. 

1.  1  Wms.  Exrs.  88;  1  Jarm.  Wills,  375. 

88;    Swinford's  Goods,   L.   R.   1   P.   &  3.  1     Wms.     Exrs.     88,    and    cases 

D.  630;  Gunstan's  Goods,  7  P.  D.  103.  cited;   Gaze  v.  Gaze,   3   Curt.  451;    3 

Tf    the   witnesses    neither    saw    nor  Curt.   172,   547;    1   Jarm.   Wills,    108, 

might  have  seen  the  signature,   it  is  109;   2  Rob.  337. 

not   even    sufficient   that  the   testator  4.  1    Jarm.    Wills,     108;     1    Curt, 

should     expressly     declare     that     the  908;  Inglesant  v.  Inglesant,  L.  R.  3  P. 

paf)«r  to  be  attested  by  them  was  his  &   D.   172.     Such  cnses  seldom  arise; 

•will.      1    J.arm.    Wills,    88;    Shaw    v.  and  the  acts  and  conduct  of  the  tes- 

Neville,    1    Jur.    N.    S.    408.      Beckett  tator  on  the  occasion  should  be  very 

V.  Ilowe,  L.  R.  2  P.  &  D.  1,  appears  carefully    scrutinized    in    such    cases. 

392 


CHAP,  III.]  ATTESTATION   AND  SUBSCRIPTION.  §    322 

The  acknowledgment  of  whieh  we  have  spoken  is  the  permitted 
eubsititute  for  signing  in  presence  of  the  witnesses.  The  testator 
(or  the  person  in  his  presence  and  by  his  direction)  should  sign 
first,  the  witnesses  afterwards ;  if  the  testator  signs  in  presence  of 
all  the  witnesses,  that  is  enough ;  but  where  his  signature  was 
already  on  the  paper  when  a  witness  was  asked  to  sign,  ithe  suffi- 
ciency of  his  own  acknowledgment  must  be  considered.  It  is  de- 
cidedly preferable  that  a  testator  should  avoid  all  such  nice  con- 
troversy, by  bringing  the  witnesses  all  into  his  presence  together 
and  then  signing  his  will  before  them. 

§  322.  The  Same  Subject ;  Presumption  of  Due  Attestation. 

It  is  possible  that  the  testator's  signature  was  on  the  will  where 
the  witnesses  might  have  seen  it,  but  inadvertently  did  not;  it  is 
]x>ssible,  too,  that  the  precise  circumstances  of  attestation  may 
have  faded  from  the  recollection  of  a  witness  by  the  time  the  will 
is  presented  for  probate.  Where  all  appears  regular  on  the  face 
of  the  will  a  due  attestation  should  be  presumed ;  and  direct  evi- 
dence that  the  name  of  the  testator  was  visible  on  the  face  of  the 
will  when  iit  was  produced  for  witnesses  to  sign  is  certainly  not 
necessary.^  The  result  of  the  cases  under  the  statute  of  Victoria, 
where  acknowledging  and  not  signing  in  presence  is  relied  upon, 
or  in  other  words,  that  the  testator's  signature  was  already  upon 
the  will  when  it  was  produced  to  ithe  witnesses  for  their  attesta- 
tion, appears  to  be  this :  that  in  the  absence  of  direct  evidence  on 
the  point  one  way  or  the  other,  the  court  may,  independently  of 
any  positive  evidence,  investigate  the  circumstances  of  the  case, 
and  may  form  its  own  opinion  from  these  circumstances,  and  from 

With   one   exception    all   the   English  supra.      See   Morritt   v.    Douglas,    L. 

precedents   up   to   1874,  under   either  R.  3  P.  &  D.  1. 

the   new   statute  or  the  old,   showed  On  a  re-execution,   it   is   enough  to 

some  word  or  act  of  the  testator  him-  merely     acknowledge     tlie     signature 

Belf  by  way  of  acknowledgment.    That  made  on  a  former  execution.     17  Jur. 

exception    (6   No.    Ca.    Suppl.   12)    is  1130,  1  Jarm.  Wills,  109. 
discussed    in    Inglesant   v.    Inglesant,  5.  See   Wright   v.    Sanderson,   9    P. 

D.   149;    §    347  post. 

393 


§   32^ 


lAW  OF  WILLS. 


[PAKT  III. 


the  appearance  of  the  document  itself,  whether  the  name  of  the 
testator  was  or  was  not  upon  it  (or  rather  might  not  have  been 
seen),  at  the  time  of  the  attestation.^  But  the  court  should  mainly 
consider  whether  itlie  witnesses  did  not  see,  or  at  least  have  an  op- 
portunity of  seeing,  the  testator's  signature  when  they  attested; 
for  if  they  did  not,  it  is  immaterial  that  the  signature  was  actually 
there,  but  hidden  from  them.^ 

As  with  the  general  presumption  in  favor  of  a  due  attestation 
where  all  appears  regular  on  the  face  of  the  will,  so  should  it  be 
presumed  that  the  testator  signed  the  instrument  first  and  before 
either  of  his  witnesses  subscribed.^ 

§  323.  Signing  or  acknowledging  before  the  Witnesses;  Ameri- 
can Rule. 

In  our  American  States,  a  corresponding  variance  of  statute  ex- 


6.  Sir  J.  P.  Wilde  (Lord  Penzance) 
in  Huckvale's  Goods,  L.  R.  1  P.  &  D. 
375.  In  this  case,  the  two  attesting 
witnesses  di^  not  know  whether  or 
not  the  testator's  signature  was  on 
the  paper  when  they  subscribed  it. 
But  the  court  under  all  the  circum- 
stances decided  that  it  probably  was 
there,  and  granted  a  probate.  See 
aLso  Gwillim  v.  Gwillim,  3  Sw. 
&  Tr.  200;  Cooper  v.  Brockett, 
4  Moo.  P.  C.  419.  These  cases 
seem  to  discredit  Hammond's  Goods, 
3  Sw.  &  Tr.  &0;  and  see  Archer's 
Goods,  L.  R.  2  P.  &  D.  252. 

7.  Gunstan's  Goods,  7  P.  D.  102, 
which  seems  to  give  a  new  turn  to 
the  propositions  as  announced  by 
Lord  Penzance,  supra.  In  Daintree 
V.  Butcher,  13  P.  D.  102,  107,  this 
question  is  dLscussed  somewhat  fur- 
ther. The  signature  of  tlie  testatrix 
was  upon  the  codicil  before  the  wit- 
ncs-sos  came  into  the  room.  They,  in 
licr   prfHcncc,   signed  tlioir  names   bo- 


low  her  signature,  which  was  so 
placed  that  they  could  have  seen  it. 
The  testatrix  had  called  them  in,  but 
she  did  not  tell  them  that  it  was  a 
testamentary  paper,  nor  what  kind 
of  instrument  it  was.  They  were 
asked  to  sign,  and  they  could  have 
seen  the  signature.  This  was  held  a 
sufficient  compliance  with  the  stat- 
ute; whereas,  as  it  would  seem,  an 
acknowledgment  by  any  testator  that 
the  paper  was  his  will  would  not  be 
enough  unless  the  witnesses  had  op- 
portunity to  see  the  signature.  And 
see  Wyatt  v.  Berry    (1893)    P.   5. 

8.  Sec  §  327.  It  should  be  borne 
well  in  mind  tliat  neither  the  Eng- 
lish Statute  of  Frauds,  nor  an 
American  code  which  copies  it,  re- 
quires a  testator  to  sign  in  the  pres- 
ence of  the  witnesses,  but  only  that 
the  witnesses  shall  sign  in  the  pres- 
ence of  the  testator.  See  Stirling  v. 
Stirling,  64  Md.  138. 


!94 


CHAP.  III.] 


ATTESTATION  AND  SUBSCRIPTION. 


§  324 


pression  calls  for  variance  in  iiLterpretation.  Subject,  however,  to 
the  language  and  policy  of  each  local  enactment,  we  may  say  that 
the  broad  American  principle  requires  the  testator  either  to  sign 
or  acknowledge  before  his  attesting  witnesses.  In  the  latter  in- 
stance, is  it  the  acknowledgment  of  his  will  or  the  acknowledgment 
of  his  signature  that  the  local  statute  keeps  in  view?  To  this  in- 
quiry let  us  direct  our  attention :  first  of  all  observing,  that  if  due 
acknowledgment  be  made  before  the  witnesses,  the  testator  need 
not  sign  his  will  in  their  presence.^ 

§  324.  The  Same  Subject;   Rule  in  Massachusetts,  etc.,  where 
Will  is  to  be  acknowledged. 
In  Massachusetts  and  various  other  States  the  language  of   the 
Statute  of  Frauds  is  essensially  followed;  and  accordingly  the  ac- 


9.  There  are  numerous  decisions 
which  establish  the  principle  for  this 
country,  as  in  England,  that  acknowl- 
edgment is  a  sufficient  substitute  for 
signing  in  the  presence.  See  1  Jarm. 
Wills,  80,  Bigelow's  American  note, 
showing  that  this  rule  is  or  was  at 
least  well  established  in  Arkansas, 
Georgia,  Indiana,  Illinois,  Iowa,  Ken- 
tucky, Massachusetts,  Missouri,  Ver- 
mont, and  Virginia.  See  Abraham  v. 
Wilkins,  17  Ark.  292;  Webb  v.  Flem- 
ing, 30  Ga.  808,  76  Am.  Dec.  675; 
Reed  V.  Watson,  27  Ind.  443 ;  Crowley 
V.  Crowley,  80  111.  469;  Sechrest  v. 
Edwards,  4  Met.  (Ky.)  163;  Ohase 
V.  Kittredge,  11  Allen,  49,  87  Am. 
Dec.  687;  Cravens  v.  Faulconer,  28 
Mo.  19;  Roberts  v.  Welch,  46  Vt.  154; 
Parramore  v.  Taylor,  11  Gratt.  220; 
11  Phila.  161;  Smith  v.  Holden,  58 
Kan.  535,  50  P.  447.  This  is  also  the 
rule  of  Connecticut,  and  New  Hamp- 
shire. Canada's  Appeal,  47  Conn. 
450;  Welch  v.  Adams,  63  N.  H.  344; 
Webster  v.  Yorty,  62  N.  E.  907,  194 
111.  408;   Claflin's  Will,  50  A.  815,  73 


Vt.  129,  87  Am.  St.  Rep.  693;  Con- 
vey's  Will,  52  Iowa,  197,  2  N.  W. 
1084.  The  New  York  code  provides 
for  the  sufficiency  of  either  a  subscrip- 
tion in  presence  of  the  witnesses,  or 
an  acknowledgment  to  them.  Lewis 
V.  Lewis,  11  N.  Y.  220.  The  Mary- 
land rule  conforms  with  the  state- 
ment in  the  text.  Stirling  v.  Stirling, 
64  Md.  138,  21  A.  273. 

But  the  local  codes  are  not  found 
uniformly  flexible  in  this  respect. 
Thus  the  Alabama  statute,  now  or 
formerly,  favors  only  wills  of  person- 
alty in  this  respect.  Henry,  Ex  parte, 
24  Ala.  638.  And  under  the  New  Jer- 
sey code,  whioh  the  courts  literally 
construed,  the  testator  had  formerly 
no  option  when  devising  land  but  to 
"  sign  "  in  presence  of  the  witnesses. 
Combs  V.  Jolly,  2  Green  Ch.  625  and 
cases  cited.  But  this  statute  appears 
since  to  have  been  changed.  Al- 
paugh's  Will,  8  C.  E.  Green,  507.  The 
local  statute  may  of  course,  change 
from  time  to  time. 


395 


324 


LAW  OF  WILLS. 


[part  iil 


knowledgment  prescribed  for  a  testator  relates  simply  to  the  will 
and  its  attestation.  Thus,  it  is  held,  agreeably  with  the  English 
line  of  precedents  under  that  statute  or  without  them,  that  a  tes- 
tator's acknowledgment  in  fact  is  sufficient,  without  any  particular 
words  importing  the  nature  or  comtents  of  the  instrument;  that 
any  act  which  clearly  indicates  his  intentional  acknowledgment  is 
sufficient,  without  any  language  whatever;  ^  that  the  will  may  have 
been  properly  acknowledged  by  him,  even  though  the  attes>ting  witr 
nesses  derive  no  clear  idea  whether  the  paper  they  subscribe  is  a 
will  or  some  other  kind  of  instniraent;  ^  and  that,  if  the  execution 
be  bona  fide,  it  matters  not  whether  the  witnesses  saw  the  testator's 
signature  or  not.^     In  matters  of  this  character  clear  and  explicit 


1.  Allison  V.  Allison,  46  111.  61,  92 
Am.  Dec.  237.  In  this  Illinois  case 
the  attestation  clause  wa,s  read  over 
by  the  scrivener  in  the  hearing  of  the 
testator  and  the  witnesses;  the  testa- 
tor then  handed  the  pen  to  the  sub- 
scribing witnesses,  and  saw  them  sign 
as  such,  but  uttered  not  a  word  while 
they  were  present;  the  court  held, 
nevertheless,  that  this  was  a  suflfici- 
ent  acknowledgment. 

2.  A  will  has  been  repeatedly  sus- 
tained in  Massachusetts  where  no  one 
of  the  witnesses  knew  that  the  attes- 
tation related  to  a  will,  nor  what,  in 
fact,  was  the  nature  of  the  instru- 
ment. Osborn  v.  Cook,  11  Cush.  532, 
59  Am.  Dec.  55 ;  Hogan  v.  Grosvenor, 
10  Met.  56,  43  Am.  Dec.  414;  Ela  v. 
Edwards,  16  Gray,  91;  13  Gray,  110. 
So  too,  in  various  other  States,  wit- 
nesses need  not  know  the  nature  or 
contents  of  the  paper.  Turner  v. 
Cook,  36  Ind.  129;  34  Ind.  275;  Can- 
ada'a  Appeal,  47  Conn.  450;  Flood  v. 
PragofF,  79  Ky.  607;  75  Vt.  19,  52  A. 
1053;  129  Ga.  92,  58  S.  E.  702;  219 
Penn.  355,  68  A.  953;   34  Me.  162;  30 


Gratt,  56,  32  Am.  Rep.  650;  52  Iowa, 
662,  3  N.  W.  734;  108  Ala.  366,  18 
So.  831;  Nixon  v.  Snellbaker,  136  N. 
W.  223,  155  Iowa,  390;  Dougherty's 
Estate,  134  N  W.  24,  158  Mich.  281; 
Conrades  v.  Heller,  87  A.  28,  119  Md. 
448. 

Tlie  presence  of  the  witnesses  is 
here  designed  as  only  an  incidental 
benefit  and  security;  the  object  of  the 
attestation  being  that  the  party  sub- 
scribing may  be  able  to  testify  that 
the  testator  put  his  name  upon  the 
identical  piece  of  paper  upon  which 
he  puts  his  own,  whatever  the  con- 
tents of  that  paper  may  prove  to  be. 
Canada's  Appeal,  47  Conn.  450.  Rob- 
inson V.  Jones,  105  Md.  62,  65  A.  814; 
Turner  v.  Cook,  supra. 

3.  Ela  V.  Edwards,  16  Gray,  91; 
Dewey  v.  Dewey,  1  Met.  359. 

Especially  does  this  doctrine  hold 
good  where  the  witness  might  have 
seen  the  signature,  and  it  was 
through  no  fault  of  the  testator  that 
he  did  not,  but  rather  because  of  hi» 
own  inadvertence. 


396 


CHAP,  in.]  ATTESTATION  AND  SUBSCRIPTION.  §    325 

acts  are  to  be  regarded,  ratber  than  mere  form.*  Of  course  a 
genuine  testamentary  intention  should  exist  on  the  maker's  part; 
but  all  is  presumed  regular  where  the  face  of  the  will  indicates  it.^ 
But  there  are  States  whose  courts  have  departed  from  the  liberal 
policy  of  the  English  courts  in  this  respect.  Thus,  in  Vermoiut, 
while  acknowledgment  of  the  will  by  the  testator  may  take  the 
place  of  subscription  in  presence  of  the  witnesses,  the  rule  is,  that 
subscribing  witnesses  to  a  will  must  subscribe  as  intending  a  tes- 
tamentary execution ;  and  hence  they  must  know  the  character  of 
the  act  they  are  to  perform,  and  that  the  instrument  was  a  will.® 
In  Missouri,  under  an  enactment  which  is  nearly  a  transcript  of 
the  Statute  of  Charles  II.,  it  is  held  that  a  subscribing  witness 
must  know  the  instrument  to  be  a  last  will,  and  must  subscribe  at 
the  testator's  request;  but  that  neither  declaration  nor  request  need 
be  verbal.^  Finally,  in  South  Carolina,  under  an  act  which  only 
permitted  of  acknowledgment  instead  of  sigTiing  by  a  liberal  con- 
struction, the  courts  refused  to  sustain  a  will  where  the  testator's 
acknowledgment  was  not  brought  clearly  home  to  a  subscribing 
witness.^ 

§  325.  The  Same  Subject:   Rule  in  New  York,  etc.,  where  Signa- 
ture is  to  be  acknowledged. 

In  New  York,  on  the  other  hand,  and  in  various  American 
States,  the  local  code  contemplates  an  acknowledgment  of  the 
"  sigTiature,"  as  under  the  English  Statute  of  Victoria.  Four  es- 
sentials are  prescribed  by  the  ISTew  York  legislature,  one  of  which 
is  the  making  of  the  subscription  in  the  presence  of  each  of  the 
attesting  witnesses,  "  or  an  acknowledgment  of  the  making  of  the 

4.  Allen  v.  Griffin,  69  Wis.  529,  35  App.  458;  Grimm  v.  Tittmann,  113 
N.  W.  21.  Mo.  56,  20  S.  W.  664. 

5.  72  N.  E.  499,  187  Mass.  120,  105  8.  Tucker  v.  Oxner,  12  Rich.  141. 
Am.  St.  Rep.  386;  Allen  v.  Griffin,  But  the  testator  need  not  formally  de- 
supra.  clare   the   instrument  to  be   his   will. 

6.  Roberts  v.  Welch,  46  Vt.  164,  Gable  v.  Rauoh,  50  S.  C  95,  27  S.  E. 
and  cases  cited.  555. 

7.  Odenwaelder    v.    Schorr,    8    Mo. 

397 


§    326  LAW  OF  WILLS.  [pAKT  III. 

same  to  them."  ®  Under  this  enactment  it  is  held  an  insufficient 
acknowledgment  of  the  testator's  subscription  where  the  paper  was 
so  folded  when  the  witnesses  signed  their  names  that  they  could 
not  see  whether  it  was  subscribed  by  him  or  not,  the  language  of 
acknowledgment  leaving  them  further  to  infer  that  it  might  have 
been  a  deed  instead  of  a  will.^  Similar  enactments  may  be  found 
in  Xew  Jersey^  and  some  other  States.^  But  under  statutes  of  this 
character,  when  the  testator  produces  a  paper  bearing  his  personal 
signature,  requests  the  witnesses  to  attest  it,  and  declares  it  to  be 
his  last  will  and  testament,  he  thereby  acknowledges  his  subscrip- 
tion, and  complies  as  essentially  with  the  statute  as  though  he  had 
signed  in  their  presence.* 

Under  none  of  the  codes,  English  or  American,  as  we  appre- 
hend, is  it  essential  to  due  acknowledgment  that  the  testator  who 
produces  the  will  with  his  name  upon  it  for  their  attestation,  should 
state  in  so  many  words  that  this  is  his  signature.^  Kor  should  in- 
formality in  one's  request  to  witnesses  invalidate  where  the  witr 
nesses  actually  understood  that  the  instrument  was  a  will.^ 

§  326.  Publication  or  Declaration  that  the  Instrument  is  a  Will. 

Here  let  us  further  observe,  that  the  statutes  of  New  York  and 

"New  Jersey  lay  down  expressly  another  essential,  not  usually  em- 

9.  Lewis   V.    Lewis,    11   N.   Y.    220,  596,  where  the  "signing  in  presence" 

223.      There    is    another    specific    re-  was  held  insufficient, 

quirement  under  this  statute — that  of  5.  1  Wnis.  Exrs.  88,  note;   3  Curt, 

acknowledging   the   instrument   to   be  172,   175;    Tilden  v.  Tilden,  13  Gray, 

one's    last    will — of    wiiicli    we    shall  110;    Adams    v.    Field,    21    Vt.    256; 

speak  presently;   §  326.  Small  v.  Small,  4  Greenl.  220,  16  Am. 

1.  Lewis  V.  Lewis,  11  N.  Y.  220.  Dec.  253;  Denton  v.  Franklin,  9  B. 
And  see  Sisters  of  Charity  v.  Kelly,  Mon.  28;  Green  v.  Grain,  12  Gratt. 
67  N.  Y.  409;  Baskin  v.  Baskin,  36  552;  Allison  v.  Allison,  46  111.  61.  92 
N.  Y.  416;  Mitchell  v.  Mitchell,  77  N.  Am.  Dec.  237;  Gamber's  Will,  104  N. 
Y.  596;   96  N.  Y.  S.  729.  Y.  476;  Reed  v.  Watson,  27  Ind.  443; 

2.  Ludlow  V.  Ludlow,  35  N.  J.  Eq.  Baskin  v.  Baskin,  supra;  Alpaugli's 
480,  487,  66  A.  583.  Will,    8    C.    B.    Green,    507;    Harp    v. 

3.  Lupcr  V.  Werts   (Or.),  1890.  Parr,  168  111.  459,  48  N.  E.  113. 

4.  Baskin  v.  Ba.skin,  36  N.  Y.  416.  6.  Morley's  Will,  125  N.  Y.  S.  886. 
But  cf.  Mitchell  v.  Mitchell,  77  N.  Y.  See  §  329,  post;  143  N.  Y.  S.  999;  144 

N.  Y.  S.  4-13. 

398 


CHAP.  III.] 


ATTESTATION  AND  SUBSCRIPTION. 


32G 


braced  under  our  local  wills  acts ;  namely,  that  the  testator  shall, 
at  the  time  of  making  or  acknowledging  his  subscription,  declare 
that  the  instrument  subscribed  is  his  last  will  and  testament.^  Such 
a  requirement  at  once  repels  the  theory  that  an  attestation  can  be 
legally  sufficient  where  the  testator  does  not  distinctly  apprise  his 
witnesses  of  the  character  of  the  paper  which  they  are  called  in  to 
subscribe.^  It  is  seen  that  this  specific  declaration  is  not  the  sub- 
stitute for  signing  in  presence,  but  accompanies  the  final  execution 
of  the  will  under  all  circumstances.  A  declaration  before  the  wit- 
nesses in  express  terms  that  the  instrument  is  one's  last  will  best 
satisfies  this  statute  requirement;  but  less  than  this  is  considered 
acceptable,  provided  that,  in  some  way,  the  testator  makes  this  fact 
known  by  acts  or  conduct,  or,  better  still,  by  words.^     And  bearing 


7.  Lewis   V.    Lewis,    11    N.   Y.   220,      are  witnessing,  and  they  must  witness 


223;  Ludlow  v.  Ludlow,  35  N.  J.  Eq. 
480,  487;  Baskin  v.  Baskin,  36  N.  Y. 
416;  Clark  v.  Clark,  52  A.  225,  64 
N.  J.  Eq.  361.  See  also  the  California 
rule,  as  applied  in  Myrick  ( Brob. )  40 ; 

66  P.  925.  And  see  a  similar  provi- 
sion in  the  Louisiana  code  construed 
in  Bourke  v.  Wilson,  38  La.  Ann.  320; 
31  So.  64,  106  La.  442  (before  a  no- 
tary ) . 

8.  lb.;   Sisters  of  Charity  v.  Kelly, 

67  N.  Y.  409. 

9.  "  There  must  be  some  declaration 
by  the  testator  that  it  was  his  wiM, 
and  a  communication  by  him  to  the 
witnesses  that  he  desires  them  to  at- 
test it  as  such.  But  this  need  not  be 
done  by  word;  any  act  or  sign  by 
which  that  communication  can  be 
made  is  enough.  The  scrivener,  in 
the  presence  of  the  testator,  says: 
'  This  is  the  will  of  A.  B.,  and  he  de- 
sires you  to  witness  it,' — the  testator 
standing  by — is  a  sufficient  publica- 
tion or  declaration.  The  form  is  im- 
material. But  the  witnesses  must 
know  it  is  the  will  of  the  testator  they 


it  at  his  request."  Mundy  v.  Mundy, 
2  McCart.  290.  And  see  Turnure  v. 
Turnure,  35  N.  J.  Eq.  437,  44  N.  J. 
Eq.  154.  Such  is  the  liberal  construc- 
tion placed  by  New  Jersey  courts 
upon  the  statute  in  question.  See  also 
Ayres  v.  Ayres,  43  N.  J.  Eq.  565,  IS 
A.  621;   63  N.  J.  Eq.  142,  51  A.  775; 

50  N.  J.  Eq.  725,  742,  26  A.  673,  676; 

51  N.  J.  Eq.  241,  27  A.  465;  56  N.  J. 
Eq.  761,  40  A.  438. 

This  same  general  conclusion  the 
latest  New  York  decisions  appear 
to  have  reached.  In  Lane  v.  Lane, 
95  N.  Y.  494,  the  testator  was  afflicted 
by  a  partial  paralysis  of  the  vocal  or- 
gans when  the  will  was  executed,  and 
could  not  utter  words.  But  he  made 
sounds  intelligible  to  those  familiar 
with  him,  and  signs  easy  of  interpre- 
tation. It  was  held  that  the  statuts 
requiring  a  publication  had  been  duly 
complied  with.  "As  to  the  condition 
now  under  consideration,"  observes 
Danforth,  J.,  in  this  case,  "  it  is  well 
settled  that  the  necessary  publication 
may   be   discovered   by   circumstances 


399 


326 


LAW   OF   WILLS. 


[pact  III. 


in  mind  that  the  main  object  of  such  legislation  is  to  repel  fraud 
and  establish  a  bona  fide  testament,  we  may  assume  that  a  substan- 
tial rather  than  a  literal  compliance  with  the  statute  formalities  is 
sufficient. 


as  well  as  words,  and  inferred  from 
the  conduct  and  acts  of  the  testator, 
and  that  of  the  attesting  witnesses  in 
his  presence,  as  well  as  established  by 
their  direct  and  positive  evidence. 
Even  a  person  both  deaf  and  dumb 
may,  by  writing  or  signs,  make  his 
will  and  declare  it."  lb.  The  New 
York  cases  are  very  numerous  which 
construe  this  "  declaration  "  phrase 
of  the  statute.  See  Coffin  v.  Coffin,  23 
N.  Y.  1;  Lewis  v.  Lewis,  11  N.  Y.  220; 
Gilbert  v.  Knox,  52  N.  Y.  125; 
Thompson  V.  Stevens,  62  N.  Y.  634; 
numerous  cases  cited  in  95  N.  Y.  499. 
Cf.  Mitchell  v.  Mitchell,  77  N.  Y.  596. 
wliere  there  was  not  considered  a  suf- 
ficient attestation.  See  3  Redf.  (N. 
Y.)  181;  4  Redf.  (N.  Y.)  244;  1  Dem. 
496.  Where  a  testator  is  asked  if  the 
instrument  is  his  will,  and  answers  in 
the  affirmative,  this  is  a  sufficient 
declaration.  Reeve  v.  Crosby,  3  Redf. 
74 ;  Coffin  v.  Coffin,  24  N".  Y.  15.  See 
49  N.  Y.  Super.  434 ;  52  N.  Y.  Supr.  1 ; 
51  N.  Y.  Supr.  571;  Voorhis,  Re,  125 
N.  Y.  765,  26  N.  E.  935;  Wilmerding's 
Will,  135  N.  Y.  S.  515. 

The  declaration  or  publication  in 
question  by  the  testator  need  not  be 
made  at  the  very  act  of  signing;  it  is 
sufficient  if  made  on  the  same  occa- 
sion, and  as  part  of  the  same  transac- 
tion. Collins,  Re,  5  Redf.  20.  It  may 
be  made  to  the  attesting  witnesaes 
separately.  2  Dom.  309.  Wlietlier 
signing  or  acknowledgment  shall  pre- 
cede the  declaration,  or  vice  versa,  is 
of  no  practical  consequence,  so  long  as 


they  are  essentially  contemporaneous. 
Jackson  v.  Jackson,  39  N.  Y.  162. 
But  in  order  to  satisfy  the  statute, 
the  declaration  before  the  attesting 
witnesses  must  be  unequivocal, 
w*hether  expressed  by  words  or  signs. 
It  will  not  suffice  that  the  witnesses 
have  learned  elsewhere,  and  from 
other  sources,  that  the  document  is  a 
will,  or  that  they  suspect  such  is  the 
character  of  the  paper.  The  fact 
must,  in  some  manner,  although  no 
particular  form  of  words  is  required, 
be  declared  by  the  testator  in  their 
presence,  so  that  they  may  know  it 
from  him.  Allen,  J.,  in  Lewis  v. 
Lewis,  11  N.  Y.  226. 

In  New  York  a  substantial  com- 
pliance with  the  statutory  method  of 
publication  is  more  readily  inferred 
where  the  will  is  holographic  (or  in 
the  testator's  own  handwriting)  than 
where  some  one  else  wrote  it.  Beck- 
ett, Re,  103  N.  Y.  167.  But  an  ex- 
hibition of  the  will,  with  the  testa- 
tor's signature  appended,  appears  al- 
ways indispensable  to  fulfil  the  stat- 
ute. 49  N.  Y.  Supr.  434;  51  N.  Y. 
Supr.  571.  "  The  formalities  pre- 
scribed by  the  statute  are  safeguards 
thrown  around  the  testator  to  pre- 
vent fraud  and  imposition.  To  this 
end  the  witnesses  should  either  see 
the  testator  subscribe  his  name,  or 
he  should,  the  signature  being  visible 
to  him  and  to  them,  acknowledge  it  to 
be  his  signature."  Earl,  J.,  in  Mac- 
kay's  Will,  110  N.  Y.  611,  615,  6  Am. 
St.  Rop.  409,  18  N.  E.  433. 


400 


CHAP.  III.]  ATTESTATION  AND  SUBSCKIPTION.  §320 

In  tMs  respect  the  enactments  just  mentioned  differ  materially 
from  the  English  statute  of  1  Vict.  c.  26 ;  for  that  statute  expressly 
dispenses  with  publication  of  the  will  by  the  testator,  as  a  distinct 
act  in  the  presence  of  the  attesting  witnesses.^  Nor  under  the 
statute  of  Car.  II.,  which  required  the  testator  to  sign,  was  publi- 
cation concluded  an  essential,  by  the  later  cases,  though  Lord  Hard- 
wicke  had  in  earlier  times  strenuously  insisted  to  the  contrary.^ 
Indeed,  the  long  established  doctrine,  both  of  England  and  the 
United  States,  is,  as  we  have  elsewhere  intimated,  that,  independ- 
ently of  an  express  statute  requiring  publication,  a  will  may  be 
duly  executed  by  a  testator  without  any  formal  announcement  of  a 
testamentary  purpose  on  his  part,  and  without  a  word  uttered  by 
him  to  show  what  is  the  nature  of  the  instrument  which  witnesses 
are  called  upon  to  subscribe.^  On  the  contrary,  the  maker's  sig- 
nature animo  testandi,  and  his  proper  acknowledgment,  such  as  we 
have  described,  showing  that  he  has  put  his  name  bona  fide  upon 
ihe  paper  which  he  desires  witnessed,  where  he  has  not  signed  in 
their  presence,  renders  the  execution  valid  in  general  without  any 
otlier  or  more  formal  publication;  and  the  signatures  of  the  wit- 
nesses being  duly  aflSxed,  the  act  of  execution  becomes  complete. 

Publication  is  the  act  of  declaring  the  instrument  to  be  the  last 
will  of  the  testator;  *  and  the  words  "  publish  "  or  "  declare  "  may 

1.  See  §  13  of  this  act;   appendix.      Hulse's  Will,  52  Iowa,  662;   Barnwell 

2.  Moodie  v.  Reid,  7  Taunt.  361,  v.  Murrell,  108  Ala.  366;  supra,  §§ 
contra  Ross  v.  Ewer,  3  Atk.  156;  Doe      321-324  and  cases  cited. 

V.  Burdett,  4  Ad.  &  El.  14,  9  Ad.  &  4.  See    Bouv.    Diet.    "  Publication.' 

El.  936.     Lord  Hardwicke,  in  Ross  v.  The  word  "  declare  "  in  the  New  York 

Ewer,   contended   for   the   publication  code    signifies    "  to    make    known,    t'> 

of   a  devise  of  real   estate.     Publica-  assert  to  others,  to  show  forth,"  and 

tion  of  a  will  of  personalty  was  not  this  in  any  manner,  either  by  words 

necessary.  or   by  acts,   in  writing  or  by  signs; 

3.  1  Jarm.  Wills,  80,  81,  1  Wms.  and  to  declare  to  a  witness  that  the 
Exrs.  84;  White  v.  British  Museum,  instrument  described  was  the  testa- 
6  Bing.  310;  Dean  v.  Dean,  27  Vt.  tor's  will,  means  to  make  it  at  the 
746;  Cilley  v.  Cilley,  34  Me.  162;  same  time  distinctly  known  to  him 
Smith  V.  Dolby,  4  Barring.  350;  Wat-  by  some  assertion,  or  by  clear  assent 
son  V.  Piper,  32  Miss.  421 ;  12  Gratt.  in  words  or  signs.  26  Wend.  325,  ap- 
239;  Meurer's  Will,  44  Wis.  392;  proved  in  Lane  v.  Lane,  95  N.  Y.  498. 
Cheatham  v.  Hatcher,   30  Gratt.   56; 

26  401 


§     327  LAW  OF  WILLS.  [PAET  III. 

conveniently  be  distinguished  from  the  "  acknowledging "  of 
which  we  have  spoken,  a  term  quite  commonly  employed  in  wills 
acts  with  the  lesser  and  limited  application.  But  a  well-drawn 
attestation  clause  usually  begins,  "  Signed,  sealed,  published,  and 
declared,"  etc. ;  and  it  is  undoubtedly  prudent  and  natural,  even 
if  unnecessary,  for  the  testator  to  make  formal  publication  before 
the  witnesses  at  the  time  they  attest.  And  if  the  signatures  and 
the  whole  execution  be  properly  managed,  there  is  no  reason  why 
a  scrivener  or  lawyer  present  who  represents  the  testator  should  no-t 
formally  announce  on  the  latter's  behalf  that  the  will  is  his  will, 
while  the  testator  remains  silent.^ 

§  327.  Simultaneous  Presence  of  Witnesses. 

Again,  the  making  or  acknowledging  of  the  testator's  signature 
is  in  England,  under  the  Statute  of  Victoria,  required  to  be  in  the 
simultaneous  presence  of  the  witnesses,^  whereas  the  old  Statute  of 
Frauds  permitted  the  testator  either  to  sign  before  one  or  two  wit- 
nesses and  acknowledge  the  will  before  the  others,  or  to  acknowl- 
edge the  will  before  all  the  witnesses  separately  without  signing  in 
the  presence  of  any  of  them.^  American  codes  will,  on  inspection, 
be  found  to  vary  on  this  point. 

But  the  Statute  of  Victoria  proceeds  to  state  simply  that  these 
witnesses  "  shall  attest  and  shall  subscribe  the  will  in  the  presence 
of  the  testator  "  ;  and  while  the  natural  consequence  would  be,  that 
their  attestation,  following  his  making  or  acknowledging  his  sig- 
nature in  their  simultaneous  presence,  would  be  in  the  presence  of 

5.  Denny    v.    Pinney,    60    Vt.    524;  shall  be  made  or  acknowledged  by  the 

Mundy   v.  Mundy,  2  McCart.  290.  testator  in  the  presence  of  ttco  or  more 

In  general,  whatever  the  local  stat-  witnesses  presertt  at  the  same  time." 

ute  requires  the  testator  to  do  must  Stat.  1  Vict   c.  26,  §  9.  And  see  Wyatt 

precede  in  point  of  time  the  subscrip-  v.  Berry.  (1893)  P.  5. 
tion  of  the  witnesses.     Bioren  v.  Nea-  7.  Stnitli    v.    Codron,    2    Ves.    455; 

ler,   78  A.  201,  76  N.  J.  Eq.  573    (a  Wright  V.  Wright,  7  Bing.  457,  3  P. 

defective  pul)lication).  Wms.  253;  Addy  v.  Grix,  8  Ves.  504; 

6.1    Jarm.    Wills,    108;    Smith    v.  Ellis  v.  Smith,  1  Ves.  Jr.  11 ;  1  Jarm. 

Smith,  L.  R.  1  P.  &  D.  143;  Moore  v.  Wills,  81. 
King,  3  Curt.  243.     "  Sucli  signature 

402 


CHAP.  III.]  ATTESTATION   AND  SUBSCEIPTION.  §    328 

eacJi  other  as  well,  this,  it  is  held,  is  not  an  indispensable  condition. 
In  other  words,  they  must  attest  in  the  presence  of  the  testator,  but 
not  necessarily  of  each  other.^  Many  American  enactments  adopt 
the  same  view.^  Under  scA^eral  of  our  codes,  however,  the  legisla- 
tive impression  imports  that  the  witnesses  must  subscribe  their 
names  in  presence  of  each  other ;  ^  and  this  is  altogether  the  prefer- 
able course  to  pursue  in  practice,  under  any  circumstances,  in 
order  to  make  the  proof  for  establishing  the  will  as  clear  as 
possible. 

§  328.  Subscription  by  Testator  after  the  Witnesses:  Acknowl- 
edgment by  Witness  not  Acceptable, 
In  'New  York  a  subscription  of  the  will  by  the  testator  after  one 
or  both  of  the  witnesses  have  signed  their  names  to  it  is  not  a  due 
execution.^  Such,  too,  is  the  English  rule  on  the  subject  under  the 
Statute  of  Victoria ;  ^  this  enactment  intending  that  the  testator 
ehall  make  or  acknowledge  his  signature  (not  his  will)  before 
either  of  the  witnesses  signs,  and,  of  course,  while  both  are  pres- 
ent.    There  are  a  few  American  States  where  a  different  rule   of 

8.  3  Curt.  659;  Webb,  Goods  of,  91  Tenn.  183,  30  Am.  St.  Rep.  875, 
Dea.  &  Sw.  1,  1  Wms.  Exrs.  90,  But  18  S.  W.  280;  Ck)wan  v.  Shaver,  95 
cf.  Casement  v.  Fulton,  5  Moore  P.  C.  S.  W.  200,  197  Mo.  203;  Hull's  Wills, 
130.  89  K   W.   979,   117  Iowa,   738,   52  A. 

9.  This  is  the  rule  of  New  York.  222;  64  Md.  138,  21  A.  273. 

Willis  V,  Moot,  36  N.  Y.  486;   107  N.  1.  See  Vermont   rule   as   stated    in 

Y.  S.  222;  98  N.  Y.  267;  Bogart,  Re,  Roberts  v.  Welch,  46  Vt.  164;  42  Vt. 

67  How.  Pr.  313.    And  of  New  Hamp-  658,  1  Am.  Rep.  359.    It  was  formerly 

shire.    Welch  v.  Adams,  63  N.  H.  344,  thus  in  Connecticut.     Lane's  Appeal, 

56  Am.  Rep.  521.     And  of  Arkansas.  57  Conn.  182,  14  Am.  St.  Rep.  94,  4 

Rogers  v.  Diamond,  13  Ark.  474.  And  L.  R.  A.  45,  17  A.  926. 
of   Massachusietts.      Ela   v.    Edwards,  2.  Jackson    v.    Jackson,    39    N.    Y. 

16  Gray,  91;   Chase  v.  Kittredge,  11  153;  21  Hun,  383;  6  Dem.  347. 
Allen,  49,  87  Am.  Dec.  687.     And  of  3.  2  Curt.   865;    3  Curt.   117,   648; 

Georgia.   Webb  v.  Fleming,  30  Ga.  808,  Moore  v.  King,  3  Curt.  243 ;  Charlton 

76    Am.   Dec.    675.      And   of   Illinois.  v.  Hindmarsh,  1  Sw.  &  Tr.  433,  8  H. 

Flinn  v.  Owen,   58   111.  111.     And  of  L.  Cas.  160;   1  Wms.  Exrs.  90.     The 

Indiana.      Johnson    v.    Johnson,    106  words  of  the  act  are  prospective,  that 

Ind.  475,  55   Am.   Rep.  762,   7  N.  E.  such  witnesses  "  shall  attest  and  shall 

201.     And  see  Simmons  v.   Leonard,  subscribe,"  etc. 

403 


§    328  LAW  OF  WILLS.  [pAKT  III. 

local  constiTiction  appears  to  have  been  adopted ;  but  on  the  whole 
the  preponderance  of  American  authority  discountenances  the 
prior  subscription  of  witnesses  to  a  will.* 

The  theory  here  favored  is,  that  while  the  statute  leaves  the  tes- 
tator free  either  to  sign  out  of  their  presence  and  acknowledge  be- 
fore the  witnesses  or  to  sign  in  their  presence  at  his  discretion, 
they,  on  their  part,  have  no  option  but  to  attest  and  subscribe  in 
his  presence,  and  they  cannot  acknowledge  a  signature  before  him 
in  return.  Hence,  it  is  held  under  the  English  staitute  that  where 
one  of  the  two  witnesses  subscribes  his  name  to  the  will  before  the 
testator  has  made  or  acknowledged  his  own  signature  in  presence  of 
both,  and  the  other  witness  then  subscribes  alone,  it  is  not  a  legal 
compliance  that  the  first  witness  should  afterwards  acknowledge 
his  premature  signature ;  but  either  he  must  re-subscribe,  or  the 
will  fails  of  its  essential  subscription  and  attestation.^  This  posi- 
tion is  reinforced  in  New  York  practice,  by  the  consideration  that, 
under  the  peculiar  legislation  of  that  State,®  attesting  witnesses 
are,  by  this  act  of  signing  their  names,  to  attest,  not  only  the  tes- 
tator's signing  or  acknowledgment,  but  his  contemporaneous  dec- 
laration that  it  is  his  will.^ 

4.  See  this  subject  exhaustively  ex-  after  his  name  already  subscribed  on 
amined  by  Gray,  J.,  in  Chase  v.  Kitt-  a  previous  day.  Trevanion,  Re,  2  Rob. 
redge,  11  Allen,  49,  87  Am.  Dec.  687,  311.  And  see  2  Curt.  865;  3  Curt, 
with  English  and  American  citations;  659;  Hindmarsh  v.  Charlton,  8  H.  L. 
Reed  v.  Watson,  27  Ind.  443;  Duffie  Cas.  160;  VVyatt  v.  Berry,  (1893)  P. 
V.  Corridon,  40  Geo.  122;  Brooks  v.  5.  The  execution  failed  in  Irvine's 
Woodson,  87  Ga.  379,  14  L.  R.  A.  160,  Estate,  55  A.  795,  206  Penn.  1,  where 
13  S.  E.  712;  Lane  v.  Lane,  54  S.  E.  one  witness  signed  before  the  testator 
90,  125  Ga.  386,  114  Am.  St.  Rep.  and  the  other  witness  did  not  know 
207.  But  as  to  presumptions,  see  §  whether  the  testator  had  signed. 
322.  6.  Supra,  §  326. 

5.  Moore  v.  King,  3  Curt.  243.  To  7.  Jackson  v.  Jackson,  39  N.  Y.  153, 
pa.S3  over  a  signature  previously  161.  Woodruff,  J.,  here  commeiits 
made,  with  a  dry  pen,  amounts  to  no  with  much  force  upon  the  danger 
more  than  an  acknowledgment,  and  which  would  arise  if  the  testator 
does  not  serve  as  a  re-suhscription.  could  keep  a  will  in  hia  possession 
l^layne  v.  Scriven,  1  R<jV>.  Eccl.  775.  signed  by  others  and  then  add  hia 
Nor  is  it  an  attestation  and  sulxscrip-  .signjuture.  '"  The  statute,"  he  furtlier 
tioii  for  a  witness  to  add  his  residence  observes,  "contemplates  acts,  each  of 

404 


CHAP.  III.] 


ATTESTATION  AND  SUBSCRIPTION. 


328 


On  ithe  whole,  it  does  not  seem  to  affect  the  legal  objection  that 
a  local  statute  follows  the  language  of  the  old  Statute  of  Frauds 
rather  than  that  of  Victoria,  in  prescribing  the  formalities  of  at- 
testation,^ And  what  we  should  here  particularly  observe  is  that 
witnesses  are  required  under  both  of  these  enactments,  not  only  to 
attest  the  will,  but  to  subscribe  it  "  in  presence  of  "  the  testator ; 
for  which  reason  a  subscription  of  his  name  prematurely  by  a  wit- 
ness, while  the  testator  is  absent,  is  especially  obnoxious  to  the  re- 
quirement, and  cannot  be  cured  by  an  acknowledgment  afterwards 
in  the  testator's  presence  without  a  re-subscription.® 


which  is  serious  and  important.  Exe- 
cution and  the  attestation  thereof 
bear  a  plain  relation  to  each  other  in 
point  of  time,  in  the  good  sense  and 
common  apprehension  of  every  one, 
and  the  statute  prescribing  the  requi- 
site formalities  to  a  valid  execution 
and  authentication,  plainly  cont  im- 
plates  that  the  acts  of  tlie  witr.esses 
shall  attest  the  signing  and  declara- 
tion of  the  testator  as  a  fact  accom- 
plished." 

8.  See  Chase  v.  Kittredge,  11  Allen, 
63,  87  Am.  Dee.  687.  "  The  [Massa- 
chusetts] statute  requires  that  the 
will  shall  '  be  in  writing  and  signed 
by  the  testator,'  and  shall  be  '  at- 
tested and  subscribed,  in  the  presence 
of  the  testator,  by  three  or  more  com- 
petent witnesses.'  He  is  not  required 
to  write  his  signature  in  their  pres- 
ence, but  it  is  his  will  which  they 
are  to  attest  and  subscribe.  It  must 
be  his  will  in  writing,  though  he  need 
not  declare  it  to  be  such.  It  must 
therefore  be  signed  by  him  bsfore  it 
can  be  attested  by  the  witnesses." 
Per  Gray,  J.,  ib. 

9.  This  was  the  precise  point  set- 
tled in  Chase  v.  Kittredg?,  aupra. 
And  see  cases  cited,  ib.     The  Act  29 


Car.  II.  did  not  permit  a  witness  to 
acknowledge  a  signature  made  in  the 
testator's  a'bsence  as  equivalent  to  a 
subscription  in  his  presence.  3  Mod. 
219;  2  P.  Wms.  510;  3  P.  Wms.  254. 
Acknowledgment  by  a  witness  is 
not  deemed  a  suilicient  substitute  for 
a  subscription  in  the  testator's  pres- 
ence under  the  Vermont  code.  Pope 
V.  Pope,  cited  11  Allen,  61  Nor  in 
New  Jersey.  Den  v.  Milton,  7  Halst. 
70;  Combs  v.  Jolly,  2  Green  Ch.  625. 
Nor  apparently  in  Delaware.  Rasli 
V.  Purnel,  2  Harring.  458;  ib.  506. 
Nor  in  North  Carolina.  Rngland  v. 
Huntingdon,  1  Ired.  561.  And  in  In- 
diana the  same  rule  is  followed.  Reed 
V.  Watson,  27  Ind.  443.  Also  in 
Georgia.  Duffie  v.  Corridon,  49  Geo. 
122;  87  Ga.  379,  14  L.  R.  A.  160,  13 
S.  E.  712 ;  Lane  v.  Lane,  54  S.  E.  90, 
125  Ga.  386,  114  Am.  St.  Rep.  207. 
Also  in  Rhode  Island.  Pawtucket  v. 
Ballon,  15  R.  I.  58.  Contra,  Sturdi- 
vant  V.  Birchett,  10  Gratt.  67,  11 
Gratt.  220.  These  Virginia  decisions 
a.ppear  to  be  the  only  ones  in  which 
an  acknowledgment  by  a  witness  to  a 
will  in  the  testator's  presence,  of  a 
signature  affixed  in  his  absence,  has 
been  held  equivalent  to  an  attestation 


405 


§  328 


LAW  OF  WILLS. 


[part  III. 


But  if,  on  tlie  other  hand,  the  subsequent  acknowledgment  of  a 
signature  placed  upon  the  will  out  of  the  testator's  presence  is  not 
relied  upon,  nor  a  signing  out  of  his  presence  at  all,  but  the  sign- 
ing of  witnesses  and  testator  was,  in  fact,  contemporaneous  and 
fulfilled  the  statute  in  all  other  respects,  our  courts  do  not  so 
readily  condemn  the  will  because  the  true  sequence  of  signing  hap- 
pens casually  to  be  reversed ;  some  witness  staking  up  the  pen  out 
of  turn  and  before  the  testator.  For  here,  it  may  be  said,  there 
is  but  a  trivial  variation  of  formal  facts  in  one  complete  and  con- 
sistent transaction ;  and  the  policy  whose  aim  it  is  to  prevent  the 
possibility  of  fraud  in  procuring  the  names  of  witnesses  can  suffer 
no  infringement.'-  Moreover,  it  is  fair  to  presmne,  in  absence  of 
clear  proof  to  the  contrary,  that  the  testator  signed  first  and  his 
witnesses  afterwards,  as  they  should  and  would  naturally  have 
done.^ 


and  subscription  in  his  presence. 
Whether  Moale  v.  Moale,  59  Md.  510, 
519,  is  decided  ax;cording  to  rule  on 
this  point,  qu.;  for  the  published  re- 
port does  not  clearly  state  the  facts 
on  which  the  opinion  is  based. 

1.  Miller  v.  McXeill,  35  Penn.  St. 
217,  is  in  point;  the  court  declining 
to  be  bound  by  English  precedents  if 
they  are  less  favorable.  And  see 
O'Brien  v.  Galagher,  25  Conn.  229; 
1  B.  Mon.  117,  approved  in  Upchurch 
V.  Upchurch,  16  B.  Mon.  113; 
Vaughan  v.  Burford,  3  Bradf.  (N.  Y.) 
78 ;  Kaufman  v.  Caughman,  49  S.  C. 
159,  61  Am.  St.  Rep.  808.  Other 
cases  seek  this  result  by  discrediting 
the  evidence  of  witnesses  themselves 
on  this  point.  21  Hun,  383.  Contra, 
50  A.  467,  55  L.  R.  A.  580,  63  N.  J. 
Eq.  321;  Marshall  v.  Mason,  57  N.  E. 
340,  176  Mass.  216,  79  Am.  St.  Rep. 
306. 

Some  American  statutes  are  not  so 


expressed  as  to  require  a  signing 
"  in  the  testator's  presence."  See  11 
Allen,  61,  87  Am.  Dec.  687,  and  cita- 
tions. The  Pennsylvania  statute,  too, 
is  a  peculiar  one,  as  we  have  seen, 
not  requiring  subscription  in  the  tes- 
tator's presence,  nor  even  subscrip- 
tion at  all.  Supra,  §  256;  11  Allen, 
62. 

"  The  general  and  regular  course 
undoubtedly  is,  for  the  testator  in  the 
first  pla<'e  to  sign  and  execute  the  will 
on  his  part,  and  then  call  upon  the 
witnesses  to  attest  the  execution  by 
subscribing  their  names."  O'Brien  v. 
Galagher,  25  Conn.  229. 

2.  Allen  v.  Griftin,  69  Wis.  529;  49 
S.  C.  159;  §  347;  Peverett's  Goods, 
(1902)  Prob.  205.  See  also  40  S.  E. 
689,  130  N.  C.  1,  89  Am.  St.  Rep.  854, 
57  L.  R.  A.  209;  Gibson  v.  Nelson,  54 
N.  E.  901,  181  111.  122,  72  Am.  St. 
Rep.  254;  Lumber  Co.  v.  Branch,  73 
S.  E.  164,  158  N.  C.  251. 


400 


CHAP.  III.]  ATTESTATIOIST    AND    SUBSCRIPTION.  §    329 

§  329.  Request  to  Witnesses  to  sign. 

The  request  that  witnesses  shoiihl  attest  and  subscribe  one's  will 
may  be  inferred  from  acts  and  conduct  of  the  testator  as  well  as  his 
express  words;  the  law  regarding  substance  rather  than  literal 
form  in  such  matters.  It  is  not  essential,  therefore,  that  the  tes- 
tator should  expressly  ask  the  subscribing  witness  to  attest  his 
will."  His  acts,  his  gestures,  may  signify  this  request;  whatever, 
in  fact,  implies  his  knowledge  and  free  assent  thereto.*  Indeed, 
the  active  part  in  procuring  the  witnesses  and  requesting  them  to 
attest  and  subscribe  is  not  unfrequently  borne  by  some  friend,  near 
relative  or  professional  counsel ;  and  if  such  third  person  acts  truly 
for  the  testator  in  his  conscious  presence  and  with  his  apparent 
consent,  the  legal  effect  is  the  same  as  though  the  testator  himself 
had  spoken  and  directed  the  business.^  But  under  such  circum- 
stances the  tacit  or  open  conduct  of  the  testator  himself,  as  ex- 
pressive of  his  knowledge  and  free  assent  or  the  reverse,  demands 
the  strictest  scrutiny;  for  nothing  done  by  others  officiating  on  his 
behalf  in  a  clandestine,  fraudulent  or  overpowering  way,  can  stand 
as  the  testator's  o^vn  act  though  done  in  his  presence.^ 

3.  3  Bradf.  295;  Rogers  v.  Dia-  48  Ind.  503;  Cheatham  v.  ITafcher, 
mond,  13  Ark  474;  Myrick  Prob.  50;  30  Gratt.  56,  32  Am.  Rep.  650; 
Allen's  Will,  25  Minn.  39;  Coffin  v.  Meurer's  Will,  44  Wis.  392;  87  Ind. 
Coffin,  23  N.  Y.  9,  80  Am.  Dec.  235;  13;  Harp  v.  Parr,  168  111.  459,  48 
HiiTgins  V.  Carlton,  28  Md.  117,  92  N.  E.  113;  Nelson's  Will,  141  N.  Y. 
Am.  Dec.  666.  152,  36  N.  E,  3;   Leonard,  Ex  parte, 

4.  Hutehins  v.  Cochrane,  2  Bradf.  39  S.  C.  518,  22  L.  R.  A.  302,  18  S.  E. 
(N.  Y.)  295;  Davies's  Goods,  2  Rob-  216;  Denny  v.  Pinney,  60  Vt.  524,  12 
ert.  337;  Allison  v.  Allison,  46  111.  61,  A.  108;  Burney  v.  Allen,  34  S.  E.  500, 
92  Am.  Dec.  237;  Savage  v.  Bowen,  125  N.  C.  314,  74  Am.  St.  Rep.  637. 
49  S.  E.  668.  103  Va.  540;  46  A.  993,  6.  See  Heath  v.  Cole,  15  Hun  (N. 
91  Md.  383;  57  S.  W.  526,  157  Mo.  1,  Y.),  100.  Our  chapter,  supra,  on 
80  Am.  St.  Rep.  604;  Craig  v.  Trot-  fraud  and  undue  influence  shows 
ter,  96  N.  E.  1003,  252  111.  228;  various  instances  where  the  officious 
Brengle  v.  Tucker,  80  A.  224,  114  Md.  zeal  of  intt;rested  parties  in  procuring 
597;  Avaro  v.  Avaro,  138  S.  W.  500,  a  formal  execution  of  the  will  has 
235  Mo.  424.  aided  much  in  condemning  it.     Every 

5.  Inglesant  v.  Inglesant,  L.  R.  3  prudent  attorney  who  is  called  upon 
P.  &  D.  172;  Gilbert  v.  Knox,  52  N.  to  take  an  active  part  in  procuring 
Y.  125;  Peck  v.  Gary,  27  N.  Y.  9.  84  the  execution  of  a  will,  takes  heed  to 
Am.   Dec.   220;    Bundy   v.   McKnight.  elicit   as   far   as   possible,   before   the 

407 


§    330  LAW  OF  WILLS.  [PART  III. 

§  330.  Attestation  and  Subscription  distinguished. 

Statutes  whichi  relate  to  the  duty  of  subscribing  wills  couple 
usually  the  words  "  attest "  and  "  subscribe  " ;  and  these  words 
should  be  distinguished.  "  To  attest  the  publication  of  a  paper 
as  a  last  will,"  observed  Robertson,  C.  J.,  of  Kentucky,  in  1840, 
"  and  to  subscribe  to  that  paper  the  names  of  <the  witnesses,  are 
very  different  things,  and  are  required  for  obviously  distinct  and 
different  ends.  Attestation  is  the  act  of  the  senses;  subscription 
is  the  act  of  the  hand ;  the  one  is  mental,  the  other  mechanical ;  and 
to  attest  a  will  is  to  know  that  it  was  published  as  such,  and  to  cer- 
tify the  facts  required  to  constitute  an  actual  and  legal  publication ; 
but  to  subscribe  a  paper  published  as  a  will,  is  only  to  write  on  the 
same  paper  the  names  of  the  witnesses,  for  the  sole  purpose  of 
identification.  There  may  be  a  perfect  attestation,  in  fact,  with- 
out subscription."  '^  We  have  seen  that  a  legal  publication  is  now 
usually  dispensed  with,  except  that  the  testator  must  either  sign 
in  presence  of  the  subscribing  witnesses  or  make  due  aclmowledg- 
ment  instead ;  but  in  knowning  and  certifying  whatever  is  thus 
made  requisite  consists  still  the  attestation  by  the  witness  as  dis- 
tinguished from  the  manual  act  of  putting  his  name  to  the  paper. 
By  attestation  we  signify  the  act  of  witnessing  in  its  full  legal 
import;  by  subscription,  the  signing  of  one's  name,  which  implies 
that  this  act  has  been  performed. 

witnesses,  the  active  interest  and  par-  unnecessary    (see  §   346,  post)    is  not 

ticipation  of  the  testator  himself.  inconsistent  with  the  provision  of  an 

A  statute  requirement,   as   in  New  act  that  the  witnesses  shall  "attest" 

York,  that  witnesses  shall  sign  at  the  as  well  as  subscribe  the  will;  for  the 

testator's  "  request,"  receives  a  liberal  word  "  attest  "   means  merely  to  act 

interpretation.      See   Cbffin   v.    Cbffin,  as  a  witness,  which  miglit  in  fact  be 

23  N.  Y.  9,  80  Am.  Dec.  235;  5  Redf.  done     without     a     subscription;     al- 

(N.  Y.)    431;   Brown  v.  Clark,  77  N.  though    in    construing   such    acts,   we 

Y.  369.  may  suppose  that  no  attestation  will 

7.  Swift  V.  Wiley,  1  B.  Mon.  114,  satisfy  tlie  legal  requirement,  except 
117.  And  see  Gerrish  v.  Nason,  22  through  the  outward  mark  of  sub- 
Me.  441,  39  Am.  Dec.  589;  Reed  v.  soription.  1  Jarm.  Wills,  109,  110; 
Watson,  27  Ind.  448;  Brengle  v.  Sir  C.  Creswell  in  Charlton  v.  Hind- 
Tucker,  80  A.  224,  114  Md.  597.  mar.sh,  1  Sw.  &  Tr.  439. 

That  a  formal  attestation  clause  is 

408 


CHAP.  III.]  ATTESTATION     AND    SUBSCRIPTION.  §    331 

§  331.  What  is  Sigrxing  or  Subscription,  by  the  Witness. 

Now,  to  consider  more  particularly  the  attestation  and  subscrip- 
tion of  tJie  will  by  tbe  witness.  And  first  we  inquire  what  signing 
or  subscription  on  his  part  will  satisfy  the  statute.  The  precedents 
adduced  as  to  the  testator's  proper  mode  of  signing  may  b©  inter- 
changed considerably  with  those  under  the  present  head.^  For  a 
subscribing  witness,  like  the  testator  himself,  signs  most  appropri- 
ately by  writing  out  his  name  boldly  with  pen  and  ink  whenever 
he  can  do  so,  and  yet  does  not  sign  thus  invariably. 

There  is  much  more  reason  why  a  testator  who  knows  how  to 
write  should  yet  be  found  incapable  of  doing  so  unassisted  at  the 
execution  of  the  will,  than  any  of  his  subscribing  witnesses,  and 
hence  be  permitted  to  make  his  mark,  use  a  stamp,  sign  by  initials, 
OT  suffer  his  hand  to  be  guided  over  the  paper,  with  the  full  force 
and  effect  of  a  regular  signature  animo  testandi.  Witnesses,  being 
chosen  from  society  at  large,  w^hereas  the  testator  himself  is  fre- 
quently sick  and  in  apprehension  of  death  when  his  will  is  exe- 
cuted, are  best  chosen  from  the  intelligent  and  able-bodied.  iSTever- 
theless,  a  witness  may  lawfully  subscribe  a  will  by  mark,^  or  by 
initials,^  and  probably  by  a  stamp  or  device,  especially  if  illiteracy 
or  some  other  consistent  rer.son  may  be  given  for  it.  But  placing 
his  seal  to  the  paper  is  not  signing,  any  more  than  in  the  signature 
of  the  testator.^  If  the  witness  cannot  write  without  assistance, 
his  hand  may  be  guided  over  the  paper  by  another.^  Initials,  a 
signature  with  a  guided  hand,  or  a  cross-mark  around  which  some 
one  else  writes  the  name  of  the  witness  before  ot  afterwards, — all 
these  are  modes  of  signing  by  the  party  himself,  and  not  by  an- 

8.  Supra,  §§  303-305.  225    (stat.)  ;   Lord  v.  Lord,  58  N.  H. 

9.  Harrison  v.  Harrison,  8  Ves.  185;       7,  42  Am.  Rep.  565. 

2  Rob.  116;  Ashmore's  Goods,  3  Curt.  1.  2  Rob.  110,  1  Redf.  Wills,  229; 

756;     Pridgen    v.    Pridgen,    13    Ired.  1  Jarm.  Wills,  82;   96  Ga.  1,  51  Am. 

259;    Ford    v.    Ford,    6    Humph.    92;  St.  Rep.  121,  30  L.  R.  A.  143,  23  S. 

Thompson  v.  Davitte,  59  Ga.  472;  Os-  E.  107.    But  see  1  Hill  Gh.  265. 

bom  V.   Cook,   11   Cush.   532,   59  Am.  2.  3  Curt.  117. 

Dec.  155;   10  Paige,  85,  40  Am.  Dec.  3.  3  Q.  B.  117;  Frith,  Re,  4  Jur.  N, 

S.  288. 

409 


332 


LAW  OF  WILLS. 


[part  III. 


other.^  It  is  only  needful  that  tlie  witness  should  have  intended 
to  denote  on  his  part  the  full  and  deliberate  act  of  a  legal  attesta- 
tion and  to  have  performed  by  his  own  hand  a  subscription  ac- 
cordingly.^ 

§  332.  The  Same  Subject. 

The  identification  of  himself  as  the  person  actually  attesting  is 
implied  in  the  signature  of  a  witness,  whatever  shape  that  signa- 
ture may  take.  Hence,  the  use  of  a  fictitious  name,  or  the  mis- 
spelling, variation  or  contraction  of  one's  own  name,  or  even  a 
signature  which  describes  instead  of  naming  at  all,  may  answer  the 
purpose  of  the  statute,  provided  the  genuine  intention  of  subscrib- 
ing as  a  witness  accompanied  the  act.^  Nor  is  a  marksman's  signa- 
ture, if  of  itself  genuine,  avoided  by  (the  circumstance  that  a  wrong 
surname  is  written  against  it.' 


4.  Supra,  §§  303-308;  Garrett  v 
Heflin,  98  Ala.  615,  39  Am.  St.  Rep 
89,  13  So.  326,  and  cases  cited. 

5.  Even  though  a  statute  should  de 
clare  that  each  witness  shall  sub 
scribe  "  his  name,"  signing  by  mark 
etc.,  is  not  excluded  by  intendment 
10  Paige,  85. 

But  the  mark  of  the  witness  must 
be  duly  proved.  Tliompson  v.  Davitte, 
59  Ga.  472;  1  Harr.  &  J.  399.  And 
it  is  certainly  unadvisable  to  have 
witnesses  who  sign  by  murk,  device, 
etc.,  where  a  testator  can  possibly 
avoid  it,  for  it  invites  litigation.  An 
extreme  in.stance  of  valid  signature 
by  mark  is  afforded  by  Ashmore'a 
GfX)ds,  3  Curt.  756.  Here  a  testatrix 
wrote  out  her  own  cwHcil,  and  pro- 
duced it  with  her  signature  to  two 
of  her  maidservants,  both  of  whom 
were  illiterate.  At  her  request  they 
made  their  respective  marks,  and  the 
testatrix  then  wrote  their  names  op- 
p^>Hite;  but  by  mistake  she  gave  to 
one  of  tiiem  a  wroii-'  surname.     This 


attestation  was  sustained  by  Sir  H. 
J.  Fust,  and  probate  of  tlie  will 
granted. 

6.  See  2  Spinks,  57,  29  L.  J.  Prob. 
114.  In  Sperling's  Goods.  3  Sw.  & 
Tr.  272,  a  servant  to  the  testator,  who 
was  called  in  as  one  of  the  witnesses, 
wrote  instead  of  his  name,  "  Servant 
to  A,"  misunderstanding  the  direction 
given  to  him;  and  in  the  haste  of 
execution  this  informnlity  was  not 
noticed.  Sir  J.  P.  Wilde,  upon  proof 
that  the  servant  meant  this  r.s  a 
proper  subscription  and  attesi.ation 
on  his  part,  treated  tlie  description  an 
equivalent  to  the  name,  and  admitted 
the  will  to  probate.  See  also  Jacobs's 
Will,  132  N.  Y.  S.  481. 

7.  Ashmore's  Goods,  3  Curt.  756. 
But  an  inadvertent  mistake  by  the 
witness,  in  writing  the  testator's  sur- 
name with  his  own  initials,  makes  his 
signature  insufTicient.  Walker's  Es- 
tate, 110  Cal.  387,  52  Am.  St.  Rep. 
104,  30  L.  R.  A.  460.  (Tliree  judges 
dissenting.)     Cf.  Jacobs's  Will,  supra. 


410 


CHAP.  III.]  ATTESTATION     AND    SUBSCRIPTION.  §    334 

§  333.  Signing  or   Subscription  Insufficient  where   a   Complete 
Intent  to  Subscribe  was  Wanting,  etc. 

But  where  the  signing  or  subscription  by  initials,  by  mark,  or 
by  whatever  else  falls  short  of  a  full  signature,  was  accompanied 
by  an  incomplete  intention  of  subscribing  as  a  witness,  -the  s^:atute 
is  not  satisfied.  As  in  the  case  where  one  of  the  witneases,  tlirough 
feebleness,  finds  himself  unable  to  complete  his  signature  after 
writing  his  Christian  name,  and  a  substitute  is  called  in.^ 

Nor,  again,  is  the  statute  satisfied  where  the  signature  relied 
upon,  whether  imperfect  or  in  full,  was  placed  upon  the  paper 
without  the  corresponding  bona  fide  intention  of  subscribing  as  an 
attesting  witness.  As,  for  instance,  if  one  should  put  a  wrong 
name  to  the  paper  with  the  intention  of  making  it  appear  .that  the 
person  bearing  that  name,  instead  of  the  witness  himself,  signed 
it.®  Or  where  initials  were  placed  on  the  will,  not  with  the  sub- 
scribing purpose,  but  merely  to  note  alterations.^  Or  generally  in 
case  of  a  signature,  fraudulently  or  surreptitiously  procured,  and 
affixed,  in  fact,  without  the  intention  of  subscribing  a^s  a  witness 
at  all  on  the  particular  occasion.^ 

§  334.  Subscription  must  be  Animo  Attestandi;   noting   Inter- 
lineations, etc. 

In  short,  the  subscription  by  a  witness,  in  order  to  be  good,  must 
have  been  made  freely  and  understandingly,  animo  attestandi.  One 
who  writes  his  name  with  a  different  intent  or  under  some  con- 
straint which  deprives  him  of  his  free  agency  cannot  be  regarded, 
in  the  legal  sense,  as  a  subscribing  witness  at  all.^^    But  it  does  not 

8.  Maddock's  Goods,  L.  R.  3  P.  &  1.  29  L.  J.  Ch.  71,  1  Rob.  712,  1 
D.  169.  Here,  the  Statute  of  Victoria  Jarm.  Wills,  82.  See  80  Va.  293, 
requiring    ''  simultaneous     presence,"      cited  p.  348. 

etc.,   the   second    attempt   at   a    legal  2.  See  Hirwimarsh  v.  Charlton,  8  H. 

execution   failed    from   other    causes;  L.  Cos.  160,  and  other  cases  cited,  § 

while  the  first  attempt  was  held   in-  345,  post,  where  acts  not  intended  as 

sufficient  because  a  feeble  witness  had  a   re.subscription   by   the   witness   are 

desisted  from  completing  his  nttesta-  denied  that  efTect. 
tion.     See  also  M'yrick  Prob.  124  2a.  Wilson's  Goods,  L.  R.  1  P.  &  D. 

9.  Pryor  v.  Pryor,  29  L.  J.  Prob.  269;  Dunn  v.  Dunn,  L.  R.  1  P.  &  D. 
114.  237. 

411 


§    335  LAW  OF  WILLS.  [PAKT  III. 

necessarily  follow  that  a  person  who  signs  the  paper  with  another 
purpose  in  view  may  not  have  intended  his  signature  to  serve  for 
attestation  as  well.^ 

As  a  safeguard  against  fraud  or  error,  erasures  or  interlinea- 
tions made  in  the  instrument  before  signing  are  properly  noted  in 
the  attestation  by  the  witnesses,  especially  if  important  ones ;  yet 
the  fact  tliat  such  erasures  or  interlineations  are  not  noted  at  the 
foot  of  the  instrument  does  not  invalidate  the  probate.* 

§  335.  Position  of  the  Signature. 

So  long  as  the  wiiiiess  has  subscribed  with  suitable  intent,  the 
general  law  insists  upon  no  particular  place  of  subscription; 
though  the  usual  and  proper  place  is  below  an  attestation  clause, 
if  there  be  one,  otherwise  at  the  left  of  the  testator's  signature,  as 
in  deeds  and  other  attested  documents.  But  in  determining 
whether  persons  have  subscribed  a  will,  actually  and  intentionally 
as  attesting  witnesses,  the  position  of  their  signatures  may  prove 
most  material  in  a  controversy.'^  If  the  names  are  written  directly 
under  an  attestation  clause,  no  difficulty  arises;  but  when  they  are 
placed  on  some  strange  and  unusual  part  of  the  paper,  the  probate 
of  the  will  is  in  great  peril.  Thus,  it  has  been  considered  that  if 
names  are  placed  under  a  particular  clause  or  statement,  the  infer- 
ence seems  to  be  prima  facie  that  they  were  put  there  to  give  effect 
or  to  testify  to  the  words  of  that  clause  or  statement  and  not  for 

3.  Griffiths  v.  Griffiths,  L.  R.  2  P.  bate.     Sharman,  Re,  L.  R.  1  P.  &  D. 

&   D.   300,   Avhere  one  witness   sig^ned  6G1. 

"A.  B.,  Executor,"  as  signifying,  fur-  Two  testamentary  instruments  were 

ther,  his  consent  to  serve  in  that  capa-  prepared    and    signed    by    a    testator, 

city,    as   the   testator    had    requested.  all  on  one  sheet.     Only  the  first  ap- 

See  also  Payne  v.  Payne,  54  Ark.  415,  peared  to  have  been  attested;   and  it 

16  S.  W.  1.  was  held  that  the  attestation  to  the 

Where   another   and    a   superfluous  first  could  not  be  construed  to  cover 

name  is  written  among  those  of  the  tlie  second.     2  Robert.  411. 

needful  subscribing  witnessps,  it  may  4.  G  Dem.    (N.  Y.)    163. 

be  shown   by  extrinsic  proof  to  have  5.  The    statute    1    Vict.   c.    26    pre- 

been    written   there    without   any    in-  scribes  where  the  testator  shall  sign, 

tontion   of  attesting;    and   upon   sucii  but  is  silent  as  to  the  witnesses, 
proof  it  may  be  omitted  from  tlic  pio 

112 


CHAP.  III.]  ATTESTATION    AND    SUBSCRIPTION. 


§  335 


fittesting  the  whole  instrument.''    But  proof  that  a  full  attestation, 
was  tliereby  intended  will  rebut  such  a  presumption.^ 

When  the  will  contains  no  regular  attestation  clause,  it  is  cus- 
tomary and  proper  to  use  some  such  expression  as  "  witness," 
''attest/'  "  in  the  presence  of,"  or  '^  signed  and  acknowledged  be- 
fore," by  way  of  briefly  attesting  and  showing  why  the  names  are 
placed  there.  These  expressions,  though  convenient  certainly,  are 
not  indispensable;  for  witnesses  subscribe  sufficiently,  whenever 
they  see  the  will  executed  by  the  testator,  and  proceed  at  once  to 
sign  their  names  on  any  part  of  it,  with  the  intention  of  attesting 
it,  and  this  whether  explanatory  words  are  placed  on  the  paper  or 
not.^  They  need  not  sign  near  the  testator,  nor  even  near  one 
another.^     This  rule  is  liable,  however,  to  statute  variance;^  and 


6.  Thus,  in  Wilson's  Goods,  L.  R.  1 
P.  &  D.  269,  a  will  was  written  on 
one  page  of  a  foolscap  sheet,  and  the 
testator's  name  was  signed  at  the 
bottom,  with  "  Witness  A.  B."  at  the 
left.  The  second  page  contained  a 
brief  inventory  of  property,  under 
wihich  were  three  other  signatures, 
"  C.  D.,"  "  E.  F.,"  and  "  G.  H."  Most 
of  these  parties  were  dead  by  the  time 
of  probate,  and  no  te=;timony  could  be 
had  to  explain  the  circumstances  of 
execution.  Tlie  court  concluded  that 
the  last  three  names,  from  their  posi- 
tion, were  not  placed  upon  the  paper 
animo  attestandi,  and  refused  a  pro- 
bate, since  one  witness,  "A.  B.,"  could 
not  give  the  will  validity. 

7.  Streatley's  Goods,  P.  (1891)   172. 

8.  Roberts  v.  Phillips,  4  E.  &  B, 
450. 

9.  lb.  Here  witnesses  signed  not 
■only  on  a  different  side  of  the  sheet 
from  the  testator,  but  so  as  to  leave 
a  considerable  blank  between  their 
names  and  his,  and  yet  the  attestation 
was  upheld.  See  also  Braddock's 
Cioods,  1  P.  &  D.  433;   Collins,  Re,  5 

41 


Redf.  20.     Witnesses  may  sign  above 
instead  of  below  the  words  designat- 
ing attestation,  without   invalidating 
the  will.     Moale  v.   Cutting,   59   Md. 
510.      And    a    will    is    well    executed 
where  a  person  signed  in  presence  of 
two  witnesses,  his  wife  adding  her  as 
sent  thereto,  though  one  of  the  wit 
nesses,    intending   to  attest   the    will 
signed  his  name  below  the  wife's  ex 
pressiou  of   assent.     Potts  v.   Felton 
70  Ind.  166.    And  see  Murray  v.  Mur- 
ray, 39  Miss.  214.    In  Texas  it  is  held 
of  no  importance  that  witnesses  sign 
in     and    not    after    tlie     attestation 
clause.     Franks  v.  Chapman,  64  Tex. 
159.     And  see  Aker's  Will,  66  N.  E. 
1103,  173  N.  Y.  620  (at  side  sufficient 
under  .statute);    29    So.   98,   127   Ala. 
640. 

It  matters  not,  under  the  Statute 
of  Victoria,  in  what  part  of  the  will 
the  attesting  witnesses  write  their 
names,  provided  it  appear  that  the 
signatures  were  meant  to  attest  the 
requisite  signature  of  the  testator.  3 
Curt.  748;  1  Robert.  757;  1  Wms. 
Exrs.  96;   Roberts  v.  Phillips,  supi'a. 


§    336  LAW  OF  WILLS.  [PAET  III. 

as  the  foot  of  the  will  and  the  vicinity  of  the  testator's  own  signa- 
ture supply  the  natural  situation  for  these  body-guards  of  an  in- 
strument which  may  need  strong  defence,  there  the  witnesses^ 
names  are  safest  found.  Any  part  of  the  will  which  follows  such) 
sigTiatures  must  be  shown  to  have  been  written  before  tliey 
signed ;  ^  and  misconstruction  of  the  motives  under  which  they 
signed  out  of  due  place  is  the  more  possible  when  their  own  direct 
testimony  is  equally  out  of  reach  with  that  of  the  testator. 

§  336.  The  Same  Subject:   Attestation  on  a  Different  Paper. 

But  the  attestation  or  subscription  by  witnesses  must  be  on  the 
same  sheet  of  paper  as  that  which  contains  the  testator's  own  sig- 
nature, or  else  upon  some  paper  physically  connected  with  that 
sheet.  'No  particular  mode  of  connection  is  prescribed  by  law ; 
and  hence  the  fastening  by  tape,  by  eyelets,  by  mucilage,  or  evea 
by  a  pin,  seems  unobjectionable.  Where  papers  are  thus  connected^ 
the  testator  may  sign  on  one  paper  and  the  witnesses  on  another, 
provided  their  intent  corresponded.^ 

But  attestation  or  a  subscription  by  witnesses  on  a  piece  of 
paper,  detached  and  separated  from  the  will  and  the  testator's  sig- 
nature, nor  affixed  in  his  presence  to  the  paper  at  ttie  time  of  exe- 
cution, fails  of  compliance  with  the  policy  of  our  law;  we  may  as- 

By   this   we   are   to   understand   that  witnesses  shall  sign  at  the  end  of  the 

this    intention   appears   upon   all   tlie  will.     4   Dem.    (N.   Y.)    124;    1  Dem. 

proof.     For,  if  no  other  evidence  can  256;    54   N.  Y.   Supr.   127;    Conway's 

be  produced  at  probate  except  the  in-  Will,  124  N.  Y.  455,  11  L.  R,  A.  796. 
strument,  and  the  natural  import  of  2.   1   No.   Cas.   396,   1   Jarm.   Wills, 

its  face  raises  a  different  view  as  to  84. 

what  the  names  meant  as  they  stood,  3.  In    Braddock's    (roods,    1    P.    D. 

a  careless  subscription  in  this  respect  433,  a  codicil  was  pinned  to  the  orig- 

may  prove  fatal  to  the  will.  inal    will.      The   testator    signed    the 

1.  In    Kentucky,    contrary    to    the  codicil,   and  the  witnesses   subscribed 

usual  rule,  attestation  must  be  made  on  the  back  of  the  will.     This,  being 

at  the  end  of  the  will;   and  any  un-  done    animo    attcsiandi,    was    held    a 

reasonable  gap  between  the  testator's  good   subscription.      And   see   Collins, 

signature  and  that  of  the  witnesses  Re,  5  Redf.  20,  where  the  attestation 

may  vitiate  the  will.     Soward  v.  So-  clause  was  pasted  at  the  end  of  the 

ward,    1    Duv.    126.      The   New   York  will;    Moore,  Re,    (1901)    P.   44    (top 

statute   is   imperative    that   attesting  of  next  page). 

414 


CnAP.  III.]  ATTESTATION    AND    SUBSCEIPTION.  §    337 

sume  it  to  be  void,  as  otherwise  a  door  would  be  open  to  much  fraud 
and  perjury. 

§  337.  The  Same  Subject:    Attestation  where  a  Will  is  written 
on  Several  Sheets. 

Most  acts  (including  ibe  English  statute  of  Victoria)  are  silent 
concerning  the  attestation  of  wills  which  are  written  on  several 
sheets.  And  the  rule  which  consequently  applies  is  that  estab- 
lished under  the  Statute  of  Frauds;  namely,  that  if  tlie  will  be 
written  on  several  sheets,  whether  fastened  together  or  not,  and  the 
last  sheet  alone  is  attested  in  fonn,  the  whole  will  is  well  executed, 
provided  all  the  sheets  were  in  the  room.*  The  Statute  of  Frauds 
did  not  require  that  all  the  sheets  should  have  been  seen  by  the 
witnesses ;  ^  but  under  the  policy  of  some  later  codes  'a  more  posi- 
tive exhibition  of  the  whole  will  in  their  presence  may  be  insisted 
upon ;  and  unquestionably,  if  the  several  pieces  of  paper  are  con- 
nected in  their  provisions  and  form  a  connected  series,  and  are 
brought  in  this  shape  before  the  attesting  witnesses  at  the  time  of 
their  subscription,  a  single  attestation  will  suffice  for  the  whole.^ 

It  is  simply  the  later  interpolation  of  sheets  not  actually  at- 
tested by  them,  or  a  subtraction,  which  the  law  still  guards  against 
under  these  circumstances ;  ^  for  execution,  whether  by  testator  or 
witnesses,  should  receive  its  intended  scope  and  no  more.  From 
this  point  of  view,  it  is  decidedly  preferable  that  the  sheets  should 
be  fastened  together  before  execution  at  all,  so  that  the  integrity 
of  the  will  may  go  undisputed ;  and  yet  this  fastening  of  parts  may 
follow  the  attestation,  without  invalidating  the  disposition.^  lb 
is  a  question  of  fact  in  any  case,  whethcir,  under  all    the    circum- 

4.  Bond   V.   Seawell.   3   Burr.   1773;  5.  lb.;  1  Wms.  Exrs.  97. 

Marsh   v.   Marsh,   1   Sw.   &  Tr.    528;  6.  Ela    v.    Edwards.    16    Gray.    91. 

Rees  V.  Eees.  L.  R.  3  P.  &  D.  84;  Ela  See  146  N.  C.  25,  59  S.  E.  163   {strict 

V.  Edwards,  16  Gray,  91;   Tonnele  v.  rule);    M'artindale's   Will,   127  N.   Y. 

Hall,  4  Comst.  140;  Wikoff's  Appeal,  S.  8S7. 

15   Penn.   St.   281,   53  Am.   Dec.   597;  7.  Ewen  v.  Franklin.  Dsa.  &  Sw.  7; 

Gass  V.  Gass,  3  Humph.  278;  229  111.  Eees  v.  Rees,  L.  R.  3  P.  &  D.  84. 

115,  82  jSr.  E.  275.  8.  Jones  v.  Habersham,  63  Ga.  146. 

415 


§    339  LAW  OF  WILLS.  [pAET  IIL 

stances,  the  sheets  as  presented  for  probate  constituted  the  identical 
will  as  actually  and  intentionally  executed;  and  presumptions 
favor  the  will  in  its  integrity  as  found  at  the  testator's  death.*  But 
if  sheets  were  then  found  scattered  about,  instead  of  together;  or 
if  tiiey  failed  to  correspond  in  sense,  as  constituting  one  distinct 
instrument;  oj."  if  the  witnesses  subscribed  earlier  sheets,  but  not 
the  last;  in  all  such  cases,  the  circumstances  would  bear  unfavor- 
ably.^ 

§  338.  "Signing"  and  "Subscribing"  Equivalent  Terms;  Dif- 
ferences as  between  Testator  and  Witnesses. 

There  seems  to  be  no  vital  distinction  between  the  words  "  sign- 
ing "  and  "  subscribing,"  as  used  by  legislatures  in  the  present 
connection.  When  witnesses  are  required  to  perform  the  manual 
act  of  subscribicg,  they  are  called  upon  simply  to  make  a  valid 
signature  in  the  same  sense  which  applies  to  the  testator,  and  not, 
as  a  literal  construction  might  import,  to  "  write  under  "  him.^ 

But,  as  already  observed,  legislation  permits  a  testator  to  "  make 
his  signature  "  or  "  acknowledge  "  before  the  witnesses  at  his 
option,  while  directing  witnesses  to  "  subscribe  "  in  return,  with- 
out any  such  option.^  And  there  remains  still  another  distinction 
to  observe,  namely,  that  the  testator  may  sign  the  will,  either  per- 
sonally or  "  by  some  other  person  in  his  presence,  and  by  his  direc- 
tion " ;  while  witnesses  are  directed  to  sign  without  any  such  ex- 
j)licit  admission  of  a  substitute.*  This  latter  point  of  difference, 
let  us  now  consider. 

§  339.  Whether  another  may  sign  for  the  Subscribing  Witness. 

By  English  construction  of  the  Statute  of  Frauds,  the  witness 
must  himself  sign  or  subscribe  animo  attestandi,  and  the  signa- 

9.  1  Wms.  Exrs.  97;   Rees  v.  Rees,  3.  Supra,  §§  321-325. 

L.  R.  3  P.  &  D.  87;  cases  supra.  4.  See  1  Vict.  c.  26,  §  9;   also  the 

1.  1  Jarm.  Wills,  84,  14  P.  D.  49;  lanj^age  of  the  various  American 
G  Dem.  (N.  Y.)  262.  codes    on    this    subject.      Under    the 

2.  1  Jarm.  Wills,  82;  Moore  v.  older  Statute  of  Frauds,  wliicli  so 
King,  3  Curt.  243;  Roberts  v.  Phil-  many  of  our  codes  follow,  a  similar 
lip.^,  4  E.  &  B.  450,  1  Wms.  Exrs.  96.  dilTercnce  of  expression  is  found. 

416 


CHAP.  III.]  ATTESTATION    AND    SUBSCEIPTION.  §    339 

ture  cannot  be  made  by  some  other  person  for  liim.^  And  the  rule 
is  the  same  under  the  present  statute  of  Victoria.  It  follows  that 
one  witness  cannot  subscribe  for  another.^  But  we  are  still  to  re- 
member that  one's  signature  by  a  mark  or  with  a  guided  hand,  is 
his  own  signature ;  and  one  witness  may  in  this  matter  help  out 
another  wdtness,  besides  signing  his  own  name.'' 

In  the  United  Sitates  this  rule  is  not  uniformly  stated,  and,  in 
fact,  the  question  is  seldom  raised.  But  the  doctrine,  as  generally 
expounded,  denies,  like  that  of  the  English  cases,  that  a  witness 
to  a  will  signs  or  subscribes  so  as  to  satisfy  the  statute  without 
some  manual  act  on  his  part  by  way  of  attestation.*  This  theory 
is  fortified  by  the  recognized  distinction  that  a  witness  cannot 
make  acknowledgment  of  his  signature  as  a  testator  may ;  ^  and 
by  the  further  omission  of  that  statute  option  of  signing  by  an- 
other which  the  local  code,  like  that  of  England,  expressly  confers 
upon  a  testator.  But  there  are  States  in  which  a  different  view 
is  taken,  namely,  that  the  name  of  an  attesting  witness  (espec- 
ially if  unable  to  write)  may  be  written  by  another  at  his  request, 
in  his  presence  and  in  the  presence  of  the  testator;  ^  nor  matters 
it  that  this  other  person  is  himself  one  of  the  subscribing  witnesses.^ 

5.  3  Curt.  243;  7  Jur.  205,  1045;  1  another,  or  write  a  name  about  his 
Jarm.  Wills,  82.  In  Leverington's  mark,  etc.,  as  under  the  English  rule, 
Goods,  11  P.  D.  80,  a  wife's  signature  consistently  with  treating  the  latter 
of  the  name  of  her  husband,  who  was  as  signing  for  himself.  2  Bradf.  96, 
unable  to  write,  was  held  an  improper  392. 

attestation.  9.  Supra,  §  338. 

6.  2  Notes  Cas.  461;  1  Wms.  Exrs.  1.  Upchurch  v.  Upchurch,  16  B. 
95.  Mon.   102;   Jesse  v.  Parker,   6   Gratt. 

7.  Harrison  v.  Elvin,  3  Q.  B.  117;  57,  52  Am.  Dec.  102. 

1   Sw.  &  Tr.  153;   Lewis  v.  Lewis,  2  2.  lb.;  and  see  Crawford's  Will,  46 

Sw.  &  Tr.  153.  S.   C.  299,  57  Am.   St.   Rep.  565.     In 

8.  Le  Roy,  Ex  parte,  3  Bradf.  (N.  Lord  v.  Lord,  58  N.  H.  7,  this  view 
Y.)  227;  2  Bradf.  96,  392;  Riley  v.  is  adopted,  but,  as  this  writer  thinks, 
Riley,  36  Ala.  496;  Horton  v.  John-  injiuliciously.  It  is  true  that  the 
son,  18  G«o.  396;  Bush  v.  McFarland,  statute,  in  requiring  an  attestation 
94  Tenn.  538,  45  Am.  St.  Rep.  760,  of  a  will,  aims  to  insure  identity  and 
27  L.  R.  A.  662,  29  S.  W.  899.  But  prevent  the  fraudulent  substitution  of 
one  witness  may   guide  the   hand  of  another   document,   besides   surround- 

27  417 


§   340 


L-i-W  OF  WILLS. 


[PAET  III. 


"Whenever  a  subscribing  witness  can  sign  for  himself,  being 
neither  illiterate  nor  physically  disabled,  it  seems  the  more  objec- 
tionable still  that  another  should  sign  for  him ;  ^  and  for  the  fel- 
low-witnesses to  affix  such  signature  under  any  circumstances  we 
deem  a  more  impolitic  course  than  for  some  other  party  to  do  so 
who 'might  himself  have  served  in  place  of  the  one  whose  name  he 
wrote/  But  for  any  third  party  to  write  out  the  signature  of  a 
witness  for  him  so  that  the  latter  makes  no  mark,  takes  no  share 
in  the  attestation  and  has  no  means  of  identifying  the  paper  to 
which  his  aiame  was  affixed,  is  highly  objectionable,  to  say  the 
least.^ 

§  340.  Subscribing  "  in  Presence  of  "  the  Testator,  etc. ;  English 
Rule. 
;N'ow  as  to  signing  or  subscribing  a  will  "  in  presence  of  "  the 


ing  the  testator  with  witnesses  to 
judge  of  his  capacity.  Under  the  Xew 
Hampshire  law,  moreover,  there  are 
three  witnesses  to  a  will,  so  that,  one 
signing  for  another,  two  are  left,  as 
in  England  and  many  of  our  States. 
But  were  a  legislature  to  require 
seven  witnesses  to  attest  and  sub- 
scribe a  will,  the  court  ought  not  by 
construction  to  reduce  the  number  by 
a  single  person;  and  this  we  think  is 
really  done  whenever  one  subscrib- 
ing witness  is  permitted  to  sign  the 
name  of  another,  without  any  phy- 
sical participation  by  the  latter  in 
the  act  of  attestation,  and  wherever 
the  person  who  writes  another's  name 
cannot  himself  be  treated  as  one  of 
the  essential  number  of  separate  wit- 
nesses. 

See  further.  Reaver's  Appeal,  54  A. 
875,  96  Md.  735,  94  Am.  St.  Rep.  610; 
Schnee  v.  Schnee,  60  P.  738,  61  Kan. 
643. 

3.  Riley    v.     Riley,    36    Ala.    496; 


contra,  Jesse  v.  Parker,  supra.  Even 
though  illiterate  or  physically  dis- 
abled, it  is  hardly  supposable  that 
any  witness  might  not  take  hold  of 
the  pen  and  make  his  mark.  See 
Dawkins  v.  Dawkins,  60  So.  289,  179 
Ala.  666. 

4.  For  in  the  case  thus  suggested, 
the  policy  of  requiring  two  (or  three) 
attesting  witnesses  is  essentially  ob- 
served at  all  events;  and  by  a  very 
slight  stretch  of  construction,  the 
agent  might  be  treated  as  himself  an 
attesting  witness  who  subscribes  an- 
other name  with  bona  fide  intent  and 
meaning  to  authenticate  the  instru- 
ment. 

5.  See  Simmons  v.  Leonard,  91 
Tenn.  183,  30  Am.  St.  Rep.  875,  18 
S.  W.  280,  where  a  devisee  under  the 
will  made  such  a  signature  for  an 
illiterate  witness,  partially  blind,  and 
the  will  was  held  invalid  in  conse- 
quence. 


41S 


CHAP.     III.]  ATTESTATION     AND     SUBSCEIPTION.      .  §    340 

testator.  For  in  this  provision  our  codes  well  harmonize,  though 
seldom  positive  in  declaring  that  witnesses  shall  sign  in  presence 
of  one  anotlier.  The  English  decisions  as  to  what  shall  be  consid- 
ered "  the  presence  "  of  the  testator  at  the  subscription  are  nmner- 
ous,  stretching  over  a  space  of  four  centuries  and  commenting 
without  a  break  upon  the  earlier  and '  later  enactments  of 
Charles  II.  and  Victoria,  in  both  of  which  the  same  language  is 
employed  in  this  respect.^ 

The  design  of  the  legislature  in  requiring  witnesses  to  sign  in 
presence  of  the  testator,  was,  as  English  authorities  state,  that  the 
testator  might  have  ocular  or  other  bodily  evidence  of  the  identity 
of  the  instrument  subscribed  by  them;  and  this  design  the  courts 
have  kept  steadily  in  view,  while  fixing  upon  the  legal  sense  of 
the  word  "  presence."'^  Consequently  the  testator's  ability  to  see 
his  witnesses  sign,  or  at  least  to  take  personal  cognizance  of  their 
act,  has  been  regarded  as  the  main  test  of  compliance  with  the 
statute;  not  without  some  free  play,  perhaps,  with  the  literal  ex- 
pression of  the  statute.  Thus,  if  a  testator,  after  having  signed 
and  published  his  will,  and  before  the  witnesses  affix  their  signa- 
tures, falls  into  a  state  of  insensibility  or  stupor  (whether  tem- 
porary or  permanent),  the  attestation  is  not  properly  made.^  jSTor 
is  the  statute  satisfied,  when  the  will  is  attested  in  a  secret  and 
clandestine  manner,  though  the  testator  be  present  in  the  same 
Toom.^  Nor  where  the  witnesses  subscribe  in  the  same  room,  or  in 
an  adjoining  room  with  the  door  left  open,  and  the  testator,  who 
had  signed  some  time  previously,  was  not  made  aware  of  it.-'  In 
short,  an  attestation  fails  of  legal  sufficiency,  whenever  the  testa- 
tor, were  he  mentally  capable  of  recognizing  the  act  of  subscription 
or  not,  was  actually  uncoi\scious  of  it ;  "  and  even  though  a  statute 
should  say  nothing  in  express  terms  of  subscribing  "  in  his  pres- 
ence," we  apprehend  that  the  simple  statute  requirement  of  a  sub- 

6.  Cf.  Statutes,  Appx.;  1  Wras.  9.  Longford  v.  Eyre,  1  P.  Wins. 
Exrs.  92.  740. 

7.  1  Jarm.  Wills,  86.  87.  1.  Jenner  v.  t^nch,  5  P.  D.  106. 

8.  Right  V.  Price,  Dougl.  241.  2.  1  Jarm.  Wills,  87. 

419 


§    341  LAW  OF  WILLS.  [PAKT  III. 

scription  and  attestation  in  addition    to    the    testator's    signature 
would  justify  the  same  legal  conclusion.^ 

§  341.  The  Same  Subject. 

But  aside  from  the  testator's  mental  consciousness  of  the  act  of 
attestation,  which  is  always  essential,  these  words  ""  in  presence 
of  "  the  testator  are  inconsistent  with  his  physical  separation  from 
the  witnesses  at  the  scene  of  their  attestation.  One  might  issue 
directions  or  receive  assurances  while  in  a  room  and  contiguous  to 
his  witnesses ;  or  indeed,  in  these  modem  days,  converse  by  wire 
between  houses  which  were  miles  apart;  but  all  this  would  be  in- 
consistent with  a  subscription  in  bodily  presence  such  as  might 
enable  the  testator  to  keep  in  view  the  identity  of  the  paper  so 
subscribed.  Nor  is  it  certain  that  the  policy  of  such  legislation 
regards  the  testator's  convenience  alone  on  the  occasion,  as  English 
authorities  have  often  stated ;  for  is  not  tliat  "  presence  "  equally 
desirable,  from  the  witness's  point  of  view,  in  order  that  the  latter 
may  judge  of  the  testator's  condition,  of  the  identity  of  the  instru- 
ment he  is  asked  to  sign,  and  of  the  bona  fides  of  the  whole  tran- 
saction ?  If  attesting  in  the  testator's  absence,  how  lightly  is  his 
own  solemn  responsibility  taken  up,  and  how  readily  does  he 
permit  his  position  as  a  witness  to  be  compromised. 

'Contiguity,  therefore,  with  an  unintermpted  view  between 
testator  and  subscribing  witness  is  deemed  the  main  element  to  a 
physical  signing  in  the  conscious  testator's  presence.  The  sub- 
scription is  not  invalidated  by  not  having  been  performed  in  the 
same  room  or  even  the  same  house,  provided  it  took  place  within 
•the  testator's  range  of  vision.  As  in  a  case  where  witnesses  left  the 
testator,  who  lay  in  bed  in  one  room,  and  subscribed  their  names 
at  a  table  in  another  room  opposite,  and  in  sight  through  a  passage, 

3.  The  whole  scope  of  our  wills  leg-  a  valid   and   legal   manner,   while   he 

JHlation,  in   requiring  the  te^stator  to  was    wholly    unconscious     that    tliey 

sign   or   acknowledge   before   his   wit-  were  doing  so;   and  we  should  be  re- 

nesses,  in  assuming  that  he  .selects  or  luctant  to  believe  that  this   insuffici- 

requesta  persons  to  be  witnesses,  etc.,  ency    depended     wholly    upon    those 

seems   to    forbid    the    idea   that   they  words  "  in  presence  of "  the  testator, 
could  subscribe  and  attest  the  will  in 

420 


CHAIMII.]  ATT75STATION    AND    SUBSCKIPTTOX.  §    341 

the  doors  between  being  thrown  open/  Or  where  a  lobby  inter- 
vened, but  the  testator  might  bave  seen  the  subscription  made  in 
a  gallery,  through  the  lobby  and  a  broken  glass  window,^  Or  where 
a  testatrix  sat  in  her  carriage,  and  the  will  was  attested  in  the  at- 
tx)rney's  office,  but  not  out  of  her  sight.®  In  all  such  cases,  the 
attestation  is  held  good  on  the  theory  that  the  testator  might  at 
least  have  se«n  the  signing,  considering  his  position  and  the  state 
of  his  health  at  the  time  of  the  transaction ;  and  it  is  deemed  imma- 
terial that  he  did  not  see,  when  he  might  have  done  so;  for  the  act, 
being  done  in  his  presence,  could  not  have  been  vitiated  by  his 
turning  or  looking  away.'' 

On  the  other  hand,  no  mere  contiguity  to  the  witnesses  will 
constitute  a  "  presence  "  within  the  act,  if  the  testator's  position 
be  such  that  he  cannot  possibly  see  them  sign.  As  where,  for  in- 
stance, he  occupies  his  bed-chamber,  and  the  witnesses  subscribe 
in  an  outer  hall  where  they  are  necessarily  hidden  from  his  sight 
by  an  inter\^ening  flight  of  stairs.^  Or  where  his  position,  which  he 
cannot  readily  change,  is  such  that  the  witnesses  are  in  reality  out  of 
his  sight.®  If  the  subscription  be  made  in  an  adjoining  room 
witJi  the  door  closed,  it  is  not  enough  that  the  testator  might  have 
seen  it  had  the  door  stood  open ;  nor  even  will  a  subscription  in  the 
room  he  occupies  suffice,  provided  that  from  his  actual  position  he 
could  not  have  seen  it  done.  But  unless  some  material  obstacle 
obstructs  the  vision,  we  here  suppose  that  the  testator  is  sick  and 
feeble,  propped  up  in  bed,  or  requiring  some  aid  in  order  to  bring 
him  into  a  right  posture,  in  which  case,  of  course,  his  disability  is 
an  important  factor  in  determining  whether  or  not  he  might  have 
seen  his  witnesses  subscribe.     Thus  the  will  of  one  who  lay  in  bed 

4.  Davy  v.  Smith,  3  Salk.  395.  in   a   different  room  from   that  oocu- 

6.  Sliires  v.  Glasscock,  2  Salk.  688.  pied  by  the  testator,  it  must  be  shown 

6.  Casson  v.  Dade,  1  M.  &  S.  294;  1  that  his  position  was  such  that  he 
Bro.  C.  C.  99;  Norton  v.  Bazett,  1  might  have  seen  the  act.  Norton  v. 
Deane,  259.  Bazett,  Dea.  &  Sw.  259;   3  Curt.  118. 

7.  1  Jarms.  Wills,  87,  88;  1  Wms.  9.  Wright  v.  Manifold,  1  M.  &  S. 
Exrs.  92,  93.  29.      And   see   1   Jarm.    88;    1    Deane, 

8.  Eccleston   v.  Petty.  Carth.    79.  259;  1  Curt.  914;  2  Curt.  395;  3  Curt* 
Where  the  subscription  takes  place      118;   1  Wms.  Exrs.  92. 

421 


§    342  LAW  OF  WILLS.  [PAET  III. 

witli  the  curtains  drawn  while  the  will  was  attested  in  front  of 
him,  was  admitted  to  probate  because  he  might  easily  have  seen 
the  act  by  pushing  the  curtain  aside ;  ^  but  that  of  another  was  re- 
fused probate  under  like  circumstances  upon  the  distinction  that 
the  testatrix  was  not  only  too  weak  to  have  opened  the  curtain 
herself,  but  lay  helplessly  with  her  back  to  the  witnesses.^ 

In  fine,  the  true  test  as  asserted  in  the  English  cases  is,  not 
whether  the  conscious  testator  saw  the  witnesses  sign,  but  whether 
he  might  have  seen  them  sign,  considering  his  mental  and  physical 
condition,  and  his  posture  at  the  time  of  their  subscription;  ^  and 
the  result  of  the  cases  is  to  enjoin  it  carefully  upon  all  those  who 
are  charged  with  the  direction  of  such  business,  where  the  testator 
himself  is  weak  and  unable  to  move  about  freely,  not  to  peril  the 
validity  of  the  will  bv  iiny  false  delicacy  about  bringing  witnesses 
and  the  sick  testator  close  together. 

§  342.  Subscribing  "  in  Presence  of  "  the  Testator,  etc. ;  Ameri- 
can Rule. 

Though  the  judiciary  of  each  State  may  construe  this  require- 
ment of  the  testator's  presence  more  or  less  lightly,  the  American 
rule  adopts  in  the  main  the  distinctions  of  the  English  cases.  Tho 
policy  of  such  enactments  in  this  country  is  understood  in  the  same 
sense ;  namely,  to  prevent  substitution  and  fraud  upon  the  testator. 
And  an  attestation  made  in  the  same  room  with  the  testator  is 
treated  as  prima  facie  an  attestation  made  in  his  presence;  while 
an  attestation  made  in  another  room  is  prima  facie  not  made  in  his 
presence;  proof  of  the  actual  facts  being  admissible  in  either  case 
to  establish  tho  contrary.* 

1.  Newton   v.   Clarke,   2   Curt.   320.      was   not   theirs.      1   P.   Wms.   239;    1 

2.  Tribe    v.    Tribe,    1    Robert.    775;       Jarm.  Wills,  89. 

1  Wms.  Exrs.  92.  4.  Noil  v.  Neil,  1  Leigli,  6;  Mande- 

3.  Trinnel's  Goods,  11  Jur.  N.  S.  villo  v.  Parker,  31  N.  J.  Eq.  242,  252; 
248;  Kellick,  Re,  3  Sw.  &  Tr.  57S.  Lamb  v.  Girtman,  33  Geo.  289;  7 
If  the  witnesses  attest  out  of  the  Harr.  &  .J.  61;  5  Mon.  199,  17  Am. 
testator's  j)rosence,  it  does  not  help  Dec.  60;  50  N.  J.  Eq.  701,  40  A.  438. 
the  ca.sc  that  the   fault  of  doing  so  This  seems  likewise  to  be  the  English 

4-22 


CHAP.  III.] 


ATTESTATION     AND    SUBSCEIPTION. 


§  342 


Where,  therefore,  the  witnesses  sign  the  will  in  an  adjoining 
room,  out  of  the  testator's  sight  as  he  lies  on  his  bed,  the  local 
statute  fails  of  compliance,  although  the  door  between  stands  partly 
open ;  ^  nor,  as  some  extreme  cases  hold,  does  it  even  avail  that  the 
testator  could  see  the  bodies  of  the  witnesses  as  they  wrote,  if  the 
will  itself  was  beyond  the  range  of  his  vision.^  It  is  not  enough  to 
subscribe  in  the  same  room  with  the  testator,  where  his  relative 
situation  forbids  his  perceiving  the  act.^  Indeed,  to  sjwak  gener- 
ally, if  the  testator  be  ill,  unable  to  change  his  position  readily  for 
himself,  or  confined  to  his  bed,  his  posture  at  the  time  of  attesta- 
tion should  be  such  as  to  enable  'him  to  perceive  his  witnesses  sub- 
scribe; and  ability  to  perceive  is  here  construed  with  some  refer- 
ence to  this  physical  condition  at  the  time  of  subscription.^     For, 


rule  of  presumptions  in  such  cases. 
See  preceding  section.  The  general 
rule  of  our  States,  like  that  of  Eng- 
land, makes  it  unessential  that  wit- 
nesses should  sign  "  in  presence  of  " 
one  another.  Supra,  §  327,  64  Md. 
138. 

In  a  very  few  States,  the  code  drops 
the  direction  of  a  signing  "  in  pres- 
ence of "  the  testator  by  the  wit- 
nesses. This  limits  the  doctrine  of 
constructive  presence.  The  New  York 
code  affords  an  instance  in  this 
respect.  11  Barb.  124;  Lewis  v. 
Lewis,  11  Kern.  220.  See  5  Redf.  (N. 
Y.)  316.  See  also  the  Arkansas  rule 
as  stated  in  14  Ark.  675;  17  Ark. 
292.  A  will  is  sufficiently  signed  in 
the  presence  of  the  testatrix,  al- 
though her  name  had  been  previously 
written  thereto  by  another  person, 
where  the  latter,  in  her  presence  and 
by  her  request  adds  to  her  name 
words  showing  that  he  wrote  it  at 
her  request.  Leonard  Ex  parte,  39 
S.  C.  518,  22  L.  R.  A.  302,  18  S.  E. 
216. 


5.  Mandeville  v.  Parker,  31  N.  J. 
Eq.  242,  7  Harr.  &  J.  61;  Boldry  v. 
Parris,  2  Gush.  433;  Lamb  v.  Girt- 
man,  33  Ga.  289;  6  Ga.  539;  Mendell 
v.  Dunbar,  169  Mass.  74.  Nor  can 
an  imperfect  subsequent  action  on  the 
part  of  witnesses,  with  the  testator's 
assent,  cure  such  defect.     lb. 

6.  Graham  v.  Graham,  10  Ired. 
219.  But  cf.  Bynum  v.  Bynum,  11 
Ired.  632;  Sturdivant  v.  Bircliett,  10 
Gratt.   67;    §   343  post. 

7.  Neil  V.  Neil,  1  Leigh,  G ;  Orndorff 
V.  Hummer,  12  B.  Mon.  619;  E^e^  v. 
Roberts,  26  Ga.  294;  23  Ga.  441; 
Downie's  Will,  42  Wis.  66;  Aikin  v. 
Weckerly,  19  Mich.  482. 

8.  Jones  v.  Tuck,  3  Jones,  202; 
Russell  V.  Falls,  3  Harr.  &  M.  463; 
Reynolds  v.  Reynolds,  1  Spears,  253, 
40  Am.  Dec.  599;  Maynard  v.  Vin- 
ton, 59  Mich.  139,  26  N.  W.  401,  60 
Am.  Rep.  276;  Witt  v.  Gardiner,  158 
111.  176,  49  Am.  St.  Rep.  150,  41  N. 
E.  781;   177  111.  43,  52  N.  E.  368. 


423 


§    342  LAW  OF  WILLS.  [pAKT  III. 

according  to  a  somewtat  recent  decision,  it  is  not  sufficient  that  tlie 
testator  and  the  witnesses  be  merely  present  together  and  that  the 
testator  looks  straight  at  the  witnesses,  if  he  does  not  recognize  or 
address  them,  but  appears  to  be  utterly  unconscious  of  their  pres- 
ence.^ 

But  if,  while  the  attesting  witnesses  are  subscribing,  the  testator, 
conscious  of  the  act,  is  in  an  adjoining  room,  where  by  the  mere 
act  of  volition  he  can  witness  the  attestation,  this  constitutes  a  sub- 
scription in  his  presence.^  And  if  thus  conscious  and  capable  of  see- 
ing the  act  with  the  witnesses,  the  more  surely  is  the  act  done  in  his 
presence,  when  in  the  same  room  with  him.^  Whenever,  in  fact,  it 
appears  that  the  subscription  was  done  in  the  immediate  or  proxi- 
mate and  conscious  presence  of  ..he  testator,  so  that  he  could  have 
seen  it  if  he  had  felt  disposed,  there  is  no  need  of  showing  that  he 
actually  saw  the  witnesses  subscribe  their  names.^  And  if  the  tes- 
tator enjoys  normal  health  and  may  move  about  at  pleasure,  his 
change  of  place  while  they  are  signing  will  not  be  readily  supposed 
to  have  deprived  them  of  his  presence.* 

9.  Chappell   v.    Trent.    90   Va.    849,  arcoinpanimcnt  of  their  subscription. 

19  S.  E.  314.  Watson  v.  Piper,  32  Miss.  451;  Meur- 

1.  Meuer's  Will,  44  Wis.  392;  By-  er's  Will,  44  Wis.  392;  McGuire  v. 
num  V.  Bynum,  11  Ired.  632;  :McEI-  Kerr,  2  Bradf.  (N.  Y.)  244;  Aurand 
fresh  V.  Guard,  32  Ind.  408;  Nock  ■<.  v.  Wilt,  9  Penn.  St.  54;  Hall  v.  Hall,. 
Nock,  10  Gratt.  106;  Bundy  v.  Mc-  18  Ga.  40;  Jackson  v.  Moore,  14  La. 
Knight,  48  Ind.  502;  Ambre  v.  Weis-  Ann.  213.  And  see  Etchison  v. 
haar,  74  111.   109.  Etchison,  53  Md.  348.     Consciousness 

2.  7    Jones,   593;    Pope   v.    Pickitt,  on  his  part  may  consist  with  an  oc- 
51  Ala.  584;    12  Ala.  687;   Mason  v.  casional  stupor.     67  Miss.  529,  491. 
Harrison,  5  Harr.  &  J.  480.  See,  also.  Calkins  v.  Calkins,  75  N. 

3.  Allen's  Will,  25  Minn.  39;  Bald  E.  182,  216  111.  458,  1  L.  E.  A.  (N. 
win  V.  Baldwin,  81  Va.  405,  59  Am.  S.)  393  (insufllcient  where  signed  out 
Rep.  669;  Ayres  v.  Ayres,  43  N.  J.  of  range  of  testator's  vision,  though 
Eq.  565,  12  A.  621;  Walker  v.  shown  to  him  and  approved  after- 
\\"alk('r,  67  Miss.  529,  7  So.  491.  ward)  ;   Healey  v.  Bartlett,  59  A.  617, 

4.  Wright  V.  Lewis,  5  Rich.  212,  55  73  N.  11.  110;  63  N.  E.  1021,  196  111. 
Am.   Dec.   714.  484,  108  Am.  St.  Rep.  233    (will  but 

Not  only  the  corporeal  presence  of  not  witnesses  clearly  in  sight)  ;  74  N. 
the  testator  is  essential  to  tlie  valid-  Y.  S.  937;  Raymond  v.  W;igner,  59 
ity  of  an   attestation,  but  liis  mental      N.  E.   811,  178  Mass.  315;   Burncy  v. 

424 


CHAr.  III.]  ATTESTATION    AND    SUBSCKIPTION.  §    343 

§  343.  Subscription  "in  Presence  of"  a  Testator  Unable  to  see; 
Cognizance  which  dispenses  with  Sight. 

Where  the  testator  is  blind,  or  of  vision  so  impaired  that  he  can- 
not see  the  act  of  subscription,  the  witnesses,  it  is  sometimes  said, 
must  sign  where,  if  able  to  see,  the  testator  might  have  seen  them.* 
But  the  more  natural  statement  appears  to  be  that,  if  ocular  cogni- 
zance by  the  testator  is  out  of  the  question,  the  subscription  should 
l>e  made  where  he  may  take  a  genuine  cognizance  of  the  act  by  his 
other  senses.®  As  most  men  can  use  their  eyes  when  their  wills 
are  executed,  vision  is  the  usual  and  safest  test  of  presence,  but  it 
is  not  the  only  one ;  for  one  may  take  note  of  the  'presence  of  an- 
other by  his  hearing  or  touch ;  and  where  one  cannot  use  his  sense 
of  sight,  but  is  sensible  of  what  is  being  done,  the  witnesses  sub- 
scribing in  the  same  room,  or  in  such  close  proximity  as  to  be 
within  the  line  of  vision  of  one  in  his  position  who  could  see,  and 
within  his  hearing,  there  is  a  sufficient  subscription  in  his  presence.' 

At  all  events,  the  act  should  be  performed  in  the  conscious  pres- 
ence of  the  testator,  and  in  such  proximity  to  him  that  the  bodily 
sciis^es  which  he  must  needs  rely  upon  may  be  used  with  fair  ad- 
vantage to  ward  off  all  deception.^     And  one  or  two  of  our  latest 

Allen,  34  S.  E.  500,  125  N.  C.  314,  79  that  he  could  have  heard  the  scratch- 

S.  E.  288,  164  N.  C.  363,  74  Am.  St.  ing  of  their  pens. 

Rep.  637  (should  be  able  to  see  botli  8.  In  Riggs  v.  Riggs,  supra  (1883), 
will  and  witnesses),  21  R.  I.  533,  45  the  will  and  codicil  were  sus- 
A.  551;  80  Minn.  180,  83  N.  W.  58;  tained  which  a  testator  made 
Avaro  v.  Avaro,  138  S.  W.  500,  235  whose  sense  of  vision  had  been  affect- 
Mo.  424;  160  S.  W.  261,  155  Ky.  738.  ed    by    an    injury.       His     sight     was 

5.  Piercy,  lie,  1  Robert.  278.  really   unimpaired,   but   he   was   com- 

6.  Ray  v.  Hill,  3  Strobh.  297;  pelled  to  lie  on  his  bed,  looking  up- 
Fincham  v.  Edwards,  3  Curt.  33;  ward,  without  turning  his  head.  As 
Riggs  V.  Riggs,  135  Mass.  238,  46  he  lay  in  this  position,  each  instru- 
Am.  Rep.  464.  ment  was  in  turn  executed.     The  will 

7.  Morton,  C.  J.,  in  Riggs  v.  R'ggs,  was  signed  by  the  witnesses  at  a 
135  Mass.  238,  241,  46  Am.  Rep.  464;  table  in  the  adjoining  room,  nine 
Ray  V.  Hill,  supra,  is  a  case  where  feet  distant  from  the  testator.  The 
the  witnesses,  when  signing,  were  so  door  was  open,  and  the  table  was  in 
near   to   the   testator,    a    blind    man,  his    natural    line    of    vision,    had    he 

been  able  to  look.     He  could  hear  all 

425 


§  343 


LAW  OF  WILLS. 


[part  III. 


cases  very  sensibly  repel  the  inference  of  some  older  precedents 
that  subscription  must  be  done  in  actual  sight  of  the  testator,  where 
all  the  circumstances  show  his  complete  cognizance  in  some  other 
way  of  the  subscription,  so  that  fraud  cannot  have  operated  in  the 
execution  of  that  particular  instrument.^ 


that  was  said,  and  knew  and  under- 
stood all  that  was  done,  and  after  the 
Avitnesses  had  signed  the  will,  it  was 
handed  to  him,  and  he  read  their 
names  as  signed  and  said  he  was  glad 
it  was  done.  The  codicil  was  exe- 
cuted while  he  Avas  in  the  same 
prostrate  condition;  and  here  the 
witnesses  attested  at  a  table  by  the 
side  of  the  bed,  about  four  feet  from 
his  head,  so  that  by  turning  his  head, 
had  he  been  able  to  do  so,  he  could 
have  seen  them. 

In  this  case  the  court  takes  it  for 
granted  that  other  courts  would  have 
decided  the  question  differently,  upon 
a  narrower  construction  of  such  a 
statute.  This,  however,  appears  by 
no  means  certain;  for  it  is  commonly 
admitted  that  subscription  before  a 
blind  man  constitutes  an  exception  to 
the  general  rule;  and  here  there  was 
something  like  blindness,  in  a  phy- 
sical incapacity  to  see  witnesses  as 
they  subscribed  in  the  natural  range 
of  vision.  The  witnesses  signed  in 
this  natural  range  of  vision,  and 
could  not  possibly  have  signed  where 
lie  might  actually  see  them,  without 
taking  an  unnatural  and  ludicrous 
position.  Consequently,  this  decision 
rested  fairly  upon  the  exception  per- 
mitted in  case  of  blin^dness. 

"  Certainly,"  observes  Morton,  C 
J.,  "  if  two  blind  men  are  in  the  same 
room,  talking  together,  they  are  in 
each  other's  presence.  If  two  men 
iiro  in  the  same  room,  conversing  to- 


gether, and  either  or  both  bandage 
their  eyes,  they  do  not  cease  to  be  in 
each  other's  presence.  ...  It  would 
be  against  the  spirit  of  our  statutes 
to  hold  that,  because  a  man  is  blind, 
or  because  he  is  obliged  to  keep  his 
eyes  bandaged,  or  because,  by  an  in- 
jury, he  is  prevented  from  using  his 
sight,  he  is  deprived  of  the  right  to 
make  a  will."  lb.  In  fine,  a  case 
like  the  above  should  turn  upon  its 
peculiar  necessity;  and  we  are  not  to 
infer  that  a  testator  capable  of  seeing 
may  bandage  his  eyes  at  discretion 
and  tlien  rely  upon  an  attestation 
made  out  by  the  evidence  of  his  other 
senses. 

9.  Cook  V.  Winchester,  81  Mich. 
581,  8  L.  R.  A.  822,  46  N.  W.  146 
(1890),  is  in  i>oint.  The  testatrix 
(as  in  Riggs  v.  Riggs,  supra), 
though  the  witnesses  signed  out  of 
the  line  of  her  vision,  was  within 
hearing  distance,  and  understood 
what  was  done,  and  expressly  ap- 
proved at  once  the  whole  transaction, 
looking  at  the  signatures  and  the 
will,  in  presence  of  the  witnesses, 
after  the  subscription  had  taken 
place.  Sturdivant  v.  Birchett,  10 
Gratt.  67  (by  a  bare  majority),  sus- 
tains the  same  doctrine. 

See  also  Arneson's  Will,  107  N.  W. 
21,  128  Wis.  112;  Ellis  v.  Flannigan, 
97  N.  E.  696,  253  111.  397. 

The  fact  that  testator  was  a  law- 
yer who  presumably  knew  the  im- 
portance of  seeing  his  witnesses  sign 


426 


■CHAP.  III.]  ATTESTATION     AND    SUBSCRIPTION.  §    345 

§  344.  Certificate  of  Acknowledgment;  Superfluous  Matter; 
Magistrate,  etc.;  Other  Formalities. 

The  certificate  of  acknowledgment  usual  in  deeds  is  altogotlier 
superfiuoiis  in  a  will ;  but  it  may  have  the  useful  effect,  provided 
all  other  formalities  are  consistent,  of  converting  the  notary  or 
magistrate  himself  into  one  of  the  subscribing  witnesses.^  A  clerk 
of  a  court  who  witnesses  a  will  does  not  affect  its  validity  by  at- 
taching his  official  seal  and  certificate ;  at  the  same  time  he  should 
have  dispensed  with  it.^ 

For  a  witness  to  add  his  place  of  recidence  to  his  signature  is 
also,  as  a  rule,  superfluous,  though  such  addition  may  sometimes  be 
found  useful  when  witnesses  are  to  be  identified  or  sought  out  for 
probate.^ 

§  345.  Re-execution,  etc.,  if  Necessary,  should  be  conducted  v^^ith 
Careful  Regard  for  Formalities. 
Where  a  first  attempt  at  executing  a  will  fails  through  some 
informality,  and  a  testator  must  go  through  the  solemnity  again 
with  the  same  or  other  witnesses,  care  should  be  taken  to  conduct 
the  new  transaction  with  a  scrupulous  regard  for  all  necessary 
forms,  and  to  avoid  the  ready  danger  of  fitting  the  first  imperfect 
solemnities  into  the  second,  so  that  failure  again  follows  imperfec- 
tion. A  witness  who  subscribes  at  the  first  attempt  should  resulv 
scribe,  if  serving  at  the  second ;  for  as  his  acknowledgment  of  a 
former  signature  is  not  good,*  neither  is  it  enough  for  him  to  re- 
trace his  former  name  with  a  dry  pen  ^  instead  of  a  wet  one,  nor 

may  b«  \Torth  considering  in   a  case  quiring  the  residence  of  witness  to  be 

of  doubtful  cognizance.     56  N.  J.  Eq.  stated   should  be  complied  with,   and 

761.  a   penalty   is   sometimes   imposed   for 

1.  Murray  V.  Murphy.  39  Miss.  214;  non-compliance.  See  13-1  N.  Y.  S. 
Keely  v.  Moore,  25  S.  Ct.  169,  196  U.  615. 

S.  31,  49  L.  Ed.  376.     But  cf.  Hull's  4.  Supra,  §  338. 

Will,  89  N.  W.  979.  117  Iowa  738.  5.  Casement  v.  Fulton,  5  Moore  P. 

2.  64  Tex.  159;  Payne  v.  Payne,  54  C.  130,  1  Rob.  773;  Maddock's 
Ariv.  415,  18  S.  W.  1.  Goods,  L.  R.  3  P.  &  D.  169. 

3.  68  A.  754.     A  local  statute  re- 

427 


346 


LAW  OF  WILLS. 


[part  in» 


even  to  change  his  first  signature,  with  the  purpose,  not  of  rewrit- 
ing, but  completing  it  as  first  written.® 

§  346.  Attestation  Clause  no  Essential  Part  of  a  Will,  but  of 
Great  Convenience. 

The  Statute  of  Victoria,  expressly  declares  that  "  no  form  of 
attestation  shall  be  necessary  " ; ''  and  aside  from  such,  enactments, 
a  formal  attestation  clause  is  no  essential  part  of  a  will,  but  the 
insti-ument  may  be  well  executed  without  it.^  It  is  snfficient, 
therefore,  that  the  witnesses,  with  attesting  intent,  subscribe  under 
or  against  the  word  "  witnesses,"  or  use  some  other  ■corresponding 
expression,  or  simply  subscribe  their  names  without  any  such  ex- 
pression at  all.^ 


6.  Hindmarsh  v.  Charlton,  8  H.  L. 
Cas.  160,  2  Rob.  311. 

On  the  other  hand,  where  the  tes- 
tator indorses  his  will  by  way  of  rati- 
fying its  contents,  but  insufficiently 
for  a  re-execution,  no  attestation  by 
witnesses  to  this  indorsement  can 
amount  to  an  attestation  of  the  will. 
Patterson  v.  Ransom,  55  Ind.  102.  Cf. 
Wright  V.  Wright,  5  Ind.  389;  Dix- 
on's Appeal,  55  Penn.  St.  424. 

If  a  testator,  after  his  will  on  var- 
ious sheets  of  paper  has  been  duly 
executed,  takes  out  and.  destroys 
some  sheets  and  substitutes  others, 
leaving  his  original  signature  at  the 
end,  and  the  will  is  neither  re-signed 
nor  reattested,  probate  may  be  re- 
fused. Treolar  v.  Lean,  14  P.  D.  49. 
Aliter,  where  the  attempt  to  change 
one's  will  is  not  so  carried  out  as  to 
destroy  the  identity  of  the  really  exe- 
cuted will.  6  Dem.  262;  Woodward's 
Goods,  L.  R.  2  P.  D.  602.  See  Part 
IV.  c.  1,  post. 

7.  Statt.   1  Vict.  c.  26,  §  9;    Appx. 

8.  1  Wmfl.  Exrs.  93;  1  Jarm.  Wills, 
85;    Roberts   v.    I'hillips,    4    E.   &    R. 


450;  10  Paige,  85,  per  Walworth,  Ch.; 
Ela  v.  Edwards,  16  Gray,  91;  146 
Ind.   282. 

9.  A  will  without  any  words  of  at- 
testation may  be  good.  Comyn,  531; 
2  Str.  1109;  Bryan  v.  White,  5  E.  L. 
&  Eq.  579;  Ela  v.  Edwards,  16  Gray, 
91;  Raskin  v.  Raskin,  36  N.  Y.  416; 
48  Barb.  200.  The  word  "  witness  " 
or  "  witnesses  "  preceding  the  signa- 
ture of  the  witnesses  is  sufficient.  Os- 
borne v.  Cook,  11  Cush.  532,  59  Am. 
Dec.  155;  Fry's  Will,  2  R.  I.  88;  Con- 
boy  V,  Jennings,  1  N.  Y.  Supr.  622. 
"  It  never  has  been  held  that  a  tes- 
timonium clause  is  necessary  or  that 
the  witnesses  should  be  described  as 
witnesses ;  nothing  more  is  required 
than  that  the  will  should  be  attested 
[and  subscribed]  by  the  witnesses." 
4  E.  &  B.  450.  And  see  Taylor  v. 
Brodhead,  5  Redf.  (N.  Y.)  624;  Ole- 
rick  V.  Ross,  146  Ind.  282.  No  attes- 
tation clause,  nor  even  the  word 
"  attest  "  is  needful  to  precede  an  at- 
testation by  witnesses.  Berberet  v. 
Berberet.  131  Mo.  399,  33  S.  W.  61, 
52   Am.   St.   Rep.   634.     And   set"   140 


428 


CHAP.  III.]  ATTESTATIOISr    AND    SUBSCRIPTION.  §    346 

]S[evertlicless,  the  use  of  an  attestation  clause,  with  full  recital 
of  the  particulars  usual  in  a  careful  execution,  is  highly  to  he  com- 
mended; both  as  a  guide  in  pursuing  the  formalities  needful  in 
so  solemn  a  transaction,  and  for  the  sake,  besides,  of  furnishing 
presumptive  testimony  that  all  has  been  rightly  done,  when  sub- 
scribing witnesses  are  dead,  forgetful,  or  beyond  the  reach  of 
process.  Nor  matters  it,  that  the  execution,  as  thus  recited,  be- 
eomes  more  formal  than  tlie  local  statute  insisted  upon ;  for  in  sim- 
ple details  it  is  wiser  to  be  needlessly  particular  than  not  particular 
enough.^  As  a  statement  of  facts  transpiring  at  the  time  when  the 
will  was  executed,  the  attestation  clause  is  useful  as  a  memorandum 
to  aid  the  attesting  witnesses  themselves  in  recalling  the  circum- 
stances at  the  time  of  probate ;  ^  besides  indicating  that  whoever 
directed  tlie  execution  understood  what  formalities  were  needful 
and  saw  them  pursued.^ 

If  the  will  contains  no  attestation  clause,  no  written  memoran- 
dum to  show  prima  facie  in  connection  with  the  signatures  that 
the  legal  essentials  of  execution  were  fully  complied  with,  the  pro- 
pounder  of  the  will  is  simply  put  to  more  onerous  proof  at  the 
probate  in  case  of  a  contest.  The  capricious  memory  of  a  subscrib- 
ing witness  is  in  such  a  case  less  easily  guided ;  and  should  one  or 
all  of  the  witnesses  happen  to  be  dead  or  absent  from  the  jurisdic- 

111.  649,  30  N.  E.  683,  33  Am.  St.  Rep.  tails  useful  on  such  an  occasion,  but 

265 ;  77  N.  Y.  S.  643 ;  Hull's  Will,  89  not   under   most   of   our    codes    abso- 

N.   W.   979,  117  Iowa  738;   Avaro  v.  lutely  indispensable. 
Avaro,  138  S.  W.  500,  235  Mo.  424;  2.  Roberts   v.   Phillips,   4    E.   &    B. 

136  N.  W.  223.  457;     Taylor    v.    Brodhead,    5    Redf. 

1.  See  form  of  attestation  used  in  (X.  Y. )   624;  Tappen  v.  Davidson,  27 

Appx.  ]Sr.   J.   Eq.   459;    Ela  v.   Edwards,   16 

A  good  form  of  attestation  clause  Gray,  91;  Cottrell,  Re,  95  N.  Y.  329; 

is   as   follows:    "Signed,   s:aled,   pub-  Hobart   v.    Hobart,    154    111.    610,    45 

lished  and  declared,  by  the  said  tps-  Am.  St.  Rep.  151,  39  N.  E.  581. 
tator,   as   and   for   his   last   will   and  3.  Walworth,     C,    in     ChaflFee     v. 

testament,  in  the  presence  of  us,  who  Baptist  Convention,   10  Paige  85,   40 

at  his  request  and  in  the  presence  of  Am.  Dec.  225.    It  is  a  wise  precaution 

each  other,  have  hereunto  subscribed  to  read  over  the  attestation  clause  to 

our    names    as    attesting    witnesses."  the  witnesses   in  the  testator's   pres- 

This,  it  is  perceived,  recites  some  de-  ence  before  they  sign. 

429 


§    347  LAW  OF  WILLS.  [PART  III. 

tion,  or  to  testify  unfavorably,  satisfactory  evidence  from  other 
sources  would  have  to  be  adduced,  showing  to  the  reasonable  satis- 
faction of  court  or  jury  that  all  the  solemnities  required  by  the 
statute  were  in  fact  duly  observed.  It  is  safer,  then,  where  no  at- 
testation clause  is  used,  for  the  witnesses  to  subscribe  under  or 
against  some  such  word  as  "  witness'  '  or  "  attest "  than  to  sign 
with  no  explanatory  word  at  all,  and  thus  widen  the  uncertain 
range  of  oral  and  extrinsic  proof. 

§  347.  Attestation  Clause;  Proof  that  all  Formalities  were  com- 
plied with,  etc. 

The  advantage  of  an  attestation  clause  with  suitable  recitals  is 
shown  in  many  of  our  decisions  relating  to  the  proof  of  wills. 
Where,  indeed,  there  is  nothing  but  a  formal  attestation  clause  on 
one  side,  and  the  testimony  decidedly  adverse  of  all  subscribing 
witnesses  on  the  other,  probate  of  a  will  has  been  refused.*  But, 
with  the  aid  of  a  proper  attestation  clause  to  contradict  such  per- 
sons, or  possibly  without  it,  wills  have  been  established  in  proof, 
against  the  concurring  statements  of  both  subscribing  witnesses  or 
the  statement  of  either,  that  the  legal  requirements  of  execution 
were  not  fully  complied  with.^  And  wherever  these  witnesses  fail 
to  recollect  and  give  no  positive  testimony,  or  cannot,  both  or  all,, 
be  produced  in  court,  the  clearer  the  recitals  of  an  attestation 
clause,  the  stronger  becomes  the  presumption  that  the  will  was 
executed  in  all  details  as  the  law  requires.^  It  matters  little,  under 

4.  Croft  V.  Croft,  4  Sw.  &  Tr.  10;       witnesses.     Cottrell  Re,  95  N.  Y.  329. 
WooUej'  V.  VVoolley,  95  N.  Y.  231.  And  see  McCurdy  v.  Neall,  42  N.  J. 

5.  6     No.     Cas.     699;      Wright     v.       Eq.   333;    154  111.  610. 

Rogers,  L.  R.  1  P.  &  D.  678.    A  regu-  6.  Guillim  v.  Guillim,  3  Sw.  &  Tr. 

lar      attestation      clause,      regularly  300;  Huckvale's  Goods,  L.  R.  1  P.  & 

.signed,  and  corroborated  either  by  the  D.  375;  1  Jann.  Wills,  86;  Cheatham 

circumstances    surrounding    the    act,  v.  Hatcher,  30  Gratt.  56,  32  Am.  Rep. 

tlie   testimony   of   other   witnesses   to  650;  Schoul.  Exrs.  &  Admrs.  §§  1076- 

the    fact   of   due   execution,   or   other  1081   (Vol.  IT.)  ;  19  Hun  630.    Tt  may 

competent  evidence,  may  establish  the  justly  be  concluded  that  the  memory 

duo  execution  of  the  will  against  the  of   a    witness   has   failed    him,   under 

positive  testimony  of  the  subscribing  these  cirrcumstances.     Pepoon's   Will, 

430 


CIIAP.  III.] 


ATTESTATION     AND     SUBSCRIPTION. 


347 


such  circumstances,  that  subscribing  witnesses  cannot  testify 
affirmatively  to  the  facts  thus  recited ;  that  the  memory  fails ;  that 
details  are  not  orally  shown  with  clearness.^  And  though  the  at- 
testing witnesses  were  all  dead  or  beyond  the  reach  of  process, 
proof  of  their  handwriting  would  in  general  make  out  a  prima 
faoie  case  of  due  execution,  which,  if  aided  by  the  recitals  of  a  full 
attestation  clause,  would  afford  a  very  strong  presumption,  unless 
the  contrary  appeared  on  the  face  of  the  will.^ 

But  in  no  case  will  the  presumption  of  compliance  with  the 
statutory  formalities  arise  unless  the  will  appears  on  its  face  to 
have  been  duly  executed.®  And  any  such  presumption  is  rebutted 
by  clear  proof  to  the  contrary.^  Insufficient  attestation  is  not  to 
be  set  up  collaterally  against  a  will  admitted  to  probate.^ 


91  N.  Y.  255.  Of  course  imputations 
more  serious  may  affect  his  credi- 
bility, in  some  cases.  If  one  sub- 
scribing witness  testifies  positively  to 
the  due  execution  of  the  will,  the 
want  of  the  memory  of  the  other 
cannot  overcome  it.  Higgins's  Will, 
94  N.  Y.  554.  See  Moore  Re  (1901), 
P.  44;  72  N.  E.  128  (Ind.  1904)  ;  59 
A.  874   (N.  J.  1905)  ;  94  N.  W.  705. 

7.  Meurer's  Will,  44  Wis.  392; 
Brown  v.  Clark,  77  N.  Y.  369 ;  2  Dem. 

(N.  Y.)  482;  Rugg  v.  Rugg,  S3  N. 
Y.  592;  4  Redf.  165;  41  N.  J.  Eq.  284, 
7  A.  443;  Arneson's  Will,  128  Wis. 
112. 

8.  See.§§  177,  178;  Tilden  v.  Til- 
den,  13  Gray,  110;  Lewis  v.  Lewis,  11 
N.  Y.  220;  Vernon  v.  Kirk,  30  Pa. 
St.  218;  Brinckerhoflf  v.  Remsen,  8 
Paige  499;  Ela  v.  Edwards,  16  Gray 
91,  10  Allen  357;  Deupree  v.  Deupree, 
45  Ga.  415;  Barnes  v.  Barnes,  66  ile. 
286;  Kellum  Re,  52  N.  y.  517;  Al- 
paugh's  Will,  23  X.  J.  Eq.  507; 
Clarke  v.  Dunnavant,  10  Leigh  13; 
Welch  v.  Welch,  9  Rich.  133;  Robin- 
son V.  Brewster,  140  111.  649,  33  Am. 


St.  Rep.  265,  30  N.  E.  683.  And  es- 
pecially if  the  attestation  clause  be 
written  by  the  testator  himself.  Al- 
paugh's  Will,  supra.  Or  a  profes- 
sional man  attended  the  execution. 
4  Redf.  165.  Or  the  testator  wroie 
out  his  own  will.  Woodhouse  v.  Bal- 
four, 13  P.  D.  2;  23  N.  J.  Eq.  507. 

If  a  will  appears  on  its  face  to  be 
duly  executed,  the  presumption  is 
that  all  was  rightly  done  even 
though  the  attestation  clause  omit  to 
state  some  essential  particular. 
Schoul.  Exrs.  §§  1076-81  (Vol.  II.),  1 
Robert.  5.  Where  a  witness  in  fact 
attested  a  testator's  signature,  but 
the  attestation  clause  described  him 
as  only  attesting  the  signatures  of 
two  other  witnesses,  probate  of  the 
Avill  was  granted.  Mason  v.  Bishop, 
1  C.  &  E.  21. 

9.  1  Jarm.  Wills,  86. 

1.  As  if  it  should  be  shown  that 
the  names  of  the  witnesses  were 
forged  by  the  testator.  Lee's  Goods, 
4  Jur.  N.   S.  490. 

2.  Leatherwood  v.  Sullivan,  81  Ala. 
458,  1   So.  718. 


431 


§    34S  LAW  OF  WILLS.  [pART  III. 

§  348.  Subscribing  Witnesses  much  relied  upon;  Effect  of  Other 
Testimony. 

Subscribing  witnesses  are  much  relied  upon  to  establish  due 
execution  of  the  will ;  nor  can  the  testimony  of  persons  acciden- 
tally present,  who  had  nothing  to  do  with  the  transaction,  be  enti- 
tled to  equal  consideration.^  Though  strangers  personally  to  the 
testator,  their  concurring  testimony  alone  may  well  establish  the 
due  execution  in  which  they  participated ;  *  and  even  in  a  conflict 
of  evidence  great  weight  is  given  to  their  several  statements. 

But  as  between  such  witnesses,  one  may  from  character,  habits 
or  surroundings,  be  more  trustworthy  than  the  other,  where  they 
disagree;  ^  and  the  interested  or  disinterested  nature  of  such  testi- 
mony will  often  determine  the  weight  to  be  given  it.  Those  called 
upon  to  sign  as  witnesses  to  a  will  should  see  that  all  is  bona  fide 
in  the  execution ;  that  the  testator  appears  mentally  sound,  and 
that  no  fraud  or  coercion  is  practiced  upon  him.^  A  subscribing 
witness  who  stultifies  himself  in  his  testimony  or  seeks  to  invali- 
date the  will  he  has  attested  as  not  duly  made  deserves  no  great 
credence  but  may  be  viewed  with  suspicion.^  Nor  is  the  prolate 
of  a  will  dependent  on  the  recollection  or  veracity  of  any  subscrib- 
ing witness ;  ^  but  other  pertinent  testimony  may  be  adduced 
though  the  subscribing  witnesses  be  not  all  dead,  non-resident,  or 
insane.*     Where  subscribing  witnesses  cannot  be  found,    after    a 

3.  Higgins's    Will,    94    N.    Y.    554.  7.  See    173    Penn.    St.    298,    33    A. 

4.  Marx  v.  McGlynn,  88  N.  Y.  357.  1100;  Cheetham  v.  Hatcher,  30  Gratt. 

5.  A  disinterested  lawyer  who  at-  56,  33  Am.  Rep.  650;  62  Iowa  163,  17 
tends  to  the  execution  and  is  ex-  N.  W.  456;  Bernsee's  Will,  141  N.  Y. 
perienced     in    such     matters     should  389,   36  N.   E.  314. 

carry     great     weight.       Neiheisel     v.  8.  Abbott  v.  Abbott,  41  Mich.  540, 

Toerge,   4   Redf.    (N.   Y.)    328;    50  S.  2  N.   W.   810.     Wiiere  neither  of  the 

C.   95,  27   S.   E.   555.     The  testimony  attesting     witnesses     knows     whether 

of   a   disinterested   draftsman    is    im-  the    testator,     an     infirm    and    aged 

portant  on  questions  of  fraud  or  sub-  person,   nearly   blind,   could   read   the 

stiiution.     Harp  v.  Parr,  168  111.  459,  will   or  was   advised  of   its   contents, 

48  N.  E.  113.  other    testimony    should     be    sought. 

6.  Martin's  Will,  144  N.  Y.  S.  174;  Cadmus  v.  Oakley,  2  Dem.  (N.  Y.) 
Smith  V.  Goodell,  101  N.  E.  255,  258  298. 

ill.   ]\r,.  9.  Reeve    v.    Crosby,    3    Redf.    74; 

432 


CHAP.  III.]  ATTESTATION     AND    SUBSCRIPTION. 


§    349 


diligent  and  honest  inquiry  satisfactory  to  the  court,  other  evidence 
will  be  admitted  to  prove  the  signature.^  In  these  and  similar 
points,  the  common  rules  of  evidence  will  apply,  subject  to  the 
local  enactment  and  practice.^ 

In  general,  the  subscribing  witnesses  establish  the  signature  to  a 
will,  and  not  its  contents.'  Their  declarations  should  be  limited 
in  proof  accordingly.  Even  the  declarations  of  the  deceased  him- 
self as  to  the  execution  or  contents  of  his  vnll  are  only  admissible 
under  strict  conditions;  and  his  complete  and  duly  executed  will 
is  not  ordinarily  to  be  affected  by  proof  of  past  declarations  which 
tend  to  dispute  its  plain  tenor.* 


§  349.  Attestation  to  the  Sanity  of  the  Testator;  Presumption, 
etc. 

As  a  formal  attestation  clause  may  be  dispensed  with,  so  may 
the  formal  recital  in  such  a  clause  that  the  testator  appeared  at  the 
time  of  execution  of  sound  mind,  and  to  have  executed  the  instru- 
ment   voluntarily    and    without   compulsion.     Recitals  somewhat 


Beadles  v.  Alexander,  9  Baxt.  604; 
107  Iowa,  723,  70  Am.  St.  Rep.  228, 
77  N.  W.  467.  All  of  tlie  subscrib- 
ing witnesses  need  not  be  sworn  in  a 
contest.  Cheatham  v.  Hatcher,  30 
Gratt.  56 ;  Abbott  v.  Abbott,  41  Mich. 
540,  2  N.  W.  810;  120  N.  C.  270,  26 
S.  E.  810.  But  the  absence  of  a  sub- 
scribing witness  whose  testimony 
might  have  been  obtained  is  a  circum- 
stance worthy  of  weight.  And  see 
New  York  code,  §  2618,  etc.,  referred 
to  in  Graber  v.  Haaz,  2  Demarest, 
216.  A  will  may  be  proved  by  proof 
of  the  signatures  of  testator  and  sub- 
scribing witnesses,  even  though  the 
latter  fail  to  remember  the  act  of 
execution.  50  S.  C.  95,  27  S.  E.  555; 
Gillis  V.  Gillis,  96  Ga.  1,  51  Am.  St. 
Rep.  121,  30  L.  R.  A.  143,  23  S.  E. 
107. 

28  4^ 


1.  Givin  V.  Green,  10  Phila.  99. 

2.  See  supra,  §§  169-213;  Schoul. 
Exrs.  &  Admrs.  §§  1076-1081  (Vol. 
II.).  In  Massachusetts  practice,  all 
the  attesting  witnesses  must  be  called 
in  a  contest  when  accessible;  but 
there  is  no  rule  of  law  that  requires 
them  all  to  be  examined  at  the  out- 
set or  in  strict  order.  Howes  v.  Col- 
burn,  165  Mass.  385.  Where  sub- 
scribing witnesses  are  dead,  etc , 
proof  of  their  handwriting  is  admis- 
sible, and  such  other  secondary  evi- 
dence as  is  usual  in  contracts. 

3.  Baker's  Appeal,  107  Penn.  Pt. 
381,  52  Am.  Rep.  478;  Bott  v.  Wood, 
5'6  Miss.  136;  140  111.  649,  33  Am.  St. 
Rep.  265,  30  N.  E.  683. 

4.  Byers  v.  Hoppe,  61  Md.  206 ;  Mer- 
cer v.  Mackin,  14  Bush,  434;  Shaw 
V.  Shaw,  1  Dem.  (N.  Y.)  21. 


§    350  LAW  OF  WILLS.  [PART  III. 

similar  are  sometimes  prescribed,  however,  for  the  acknowledg- 
ment of  a  deed  in  specified  instances ;  and  the  convenience  of  such 
a  recital  in  a  will  is  obvious.  There  are  one  or  two  American 
States  whose  codes  favor  at  least,  if  they  do  not  require,  a  formal 
attestation  by  the  subscribing  witnesses  as  to  the  sanity  of  the  tes- 
tator as  well  as  his  signature ; ""  and  a  full  and  complete  attestation 
clause  gives  presumptive  strength  to  whatever  it  may  recite.® 

Subject  to  what  has  been  elsewhere  said  of  the  proof  of  mental 
competency,  the  proof  of  a  testator's  signature  to  a  will  raises  a 
presumption  that  he  executed  it  understandingly.'^  And  it  may 
also  be  presumed  that  each  witness  who  subscribed  thought  the 
testator  competent  mentally  and  under  no  coercion  at  the  time  of 
execution.^ 

§  350.  "  Credible  "  or  "  Competent "  Witnesses ;   who  are  Such, 

With  a  brief  statement  of  the  qualification  of  witnesses  to  a  will, 
we  shall  close  the  present  chapter.  The  Statute  of  Frauds  required 
that  every  devise  of  land  should  be  attested  by  "  credible  "  wit- 
nesses ;  ^  an  epithet  for  which  "  competent "  has  been  substituted 
in  most  of  our  American  codes  concerning  wills,  as  more  precise 
and  definite,^  while  the  Wills  Act  of  Victoria  drops  the  adjective 
altogether.^ 

By  "  credible  "  witnesses  the  English  law  has  understood  such 
persons  as  were  not  disqualified  from  testifying  in  courts  of  justice 
by  mental  imbecility,   crime   or   interest.^     In  American  practice, 

5.  See  Missouri  Statute  of  Wills  1.  In  the  Massachusetts  code  this 
as  cited  in  Withington  v.  Withing-  substitution  has  taken  place.  Mass. 
ton,  7  Mo.  589;  111.  Eev.  Stats.  1880,  Pub.  Stats,  c.  127,  §§  1,  2.  See  83 
c.  148,  p.  1108;  supra,  §  183.  Ky.  345,  to  the  eiFect  that  "credible" 

6.  Bernsee's  Will,  141  N.  Y.  389,  in  the  statute  means  "  comp;tent."^ 
36  N.  E.  314.  See  also  Harp  v.   Parr,   168  111.  459, 

7.  §§   169-213;    159   111.   591;    37   S.  48   N.    E.    113. 

C.  384.  2.  See    Act     1    Vict.    c.    26,    §    9; 

8.  Mordecai  v.  Canty,  68  S.  E.  1049,  Appx.  post.  By  §  14  of  this  enaot- 
86  S.  C.  470;  supra,  §§  177-183;  ment  it  is  declared  that  a  will  shall 
Grant's  Will,  135  N.  W.  833.  149  Wis.  not  be  void  because  of  the  incompe- 
330.  tency  of  an  attesting  witness. 

9.  1   Jarm.  Wills,  70,  90.  3.   1  .larm.  70,  90;   1  Burr.  414. 

434 


CHAP.  III.]  ATTESTATION    AND    SUBSCRIPTION.  §    351 

"  credible  "  signifies  'the  same  as  "  competent " ;  that  is  to  say, 
■witnesses  who  are  not  disqualified  to  testify  by  the  common-law 
rules  of  evidence  at  the  time  of  attestation/  as  various  codes  are 
somewhat  explicit  in  declaring ;  ^  and  hence  a  person  convicted 
of  crime  might  in  most  (States  legally  witness  a  will,  and  the  fact 
of  his  previous  or  subsequent  conviction  could  only  be  used  to  im- 
peach his  testimony.® 


§  351.  Competency  on  Common-Law  Principle;  as  referring  to 
Date  of  Subscribing,  etc. 

Upon  common-law  principle,  the  qualification  or  disqualifica- 
tion of  a  witness  is  usually  raised  with  reference  to  the  time  when 
he  is  called  upon  to  testify.  Nor  is  competency  at  that  date  to  be 
left  unconsidered ;  as  where,  for  instance,  a  witness  who  subscribed 
while  in  sound  mind,  has  become  insane  by  the  time  the  probate 
of  the  will  is  at  issue,  in  which  case,  of  course,  his  testimony  can- 
not be  taken.  But  his  incompetency  at  this  later  date  does  not 
defeat  the  will,  whose  attestation  and  subscription  was  a  sort  of 
testifying,  such  as  the  peculiar  transaction  called  for.  To  surroim.d 
himself  with  a  specified  number  of  witnesses  at  that  time  com- 
petent, was  all  that  any  testator  could  do,  in  compliance  with  the 
statute  requirements ;  and  what  was  then  a  proper  execution  in  all 
respects  taking  place,  a  will  was  produced  whose  validity  could 
never  be  impeached  for  informality. 

Hence  the  rule,  which  reason  should  now  pronounce  the  univer- 
sal one,  so  far  as  the  question  remains  a  material  one  at  all,  that 

4.  Sparhawk      v.      Sparhawk,      10  187  111.   86    (though  impeached  as  to 

Allen     155;     Haven    v.    Hilliard,     23  veracity);    Klinzer's  Will,   130  N.  Y. 

Pick.   10;    Eustis  v.  Parker,   1  N.  H.  S.  1059    (one  of  immoral  life). 

273;    Rucker  v.   Lambdin,    12    Sm.   &  5.  The     word     "disinterested"     is 

M.    230;    Hall   v.    Hall,    18    Ga.    40;  used  in  some  of  our  codes,  still  more 

Lord  V,   Lord,   58  N.  H.   7;    Sullivan  precisely,  so  as  to  avoid  changes  un- 

V.    Sullivan,    106    Mass.    474,    8    Am.  der     the     general    rules    of    evidence. 

Eep.    356;    next   section;    Warren    v.  Jones  v.  Larrabee,  47  Me.  474. 

Baxter,  48  Me.  193;   Boyd  v.  McCon-  6.  Robinson    v.    Savage,    15    N.    E. 

nell,    70  N.   E.    649,   209   111.   396;    72  850,   124  111.  266. 
N.  E.  1090,  213  111.  428;  58  N.  E.  237. 

435 


§    351  LAW  OF  WFLLS.  [pART  III. 

tlie  competency  of  witnesses,  like  that  of  the  testator,  is  tested 
essentially  by  one's  status  at  the  time  when  the  will  was  executed. 
If,  therefore,  a  sufficient  number  of  witnesses  attest  and  subscribe 
properly  who  at  that  date  are  competent,  the  will  remains  valid, 
although  death  or  supervening  disability  may  render  any  or  all  of 
them  incapable  in  fact  of  testifying  by  the  time  the  will  is  offered 
for  probate.'^  In  other  words,  the  inconvenience  of  this  last  situa- 
tion is  purely  casual  and  incidental,  and  without  direct  prejudice 
t<>  the  will  itself,  which  might,  indeed,  be  established  on  mere  proof 
of  handwriting,  where  the  instrument  appeared  on  its  face  genuine 
and  formal.  The  converse  of  this  proposition  holds  also  true; 
namely,  that  the  will  is  invalid  unless  witnesses  of  a  sufficient 
number  attest  and  subscribe  properly,  who  at  the  date  of  execution 
are  competent.^  Fo^r  these  attesting  witnesses  constitute  the  body- 
guard, so  to  speak,  of  the  testator  when  he  signs  the  will,  and  as- 
sure the  present  disposition  as  the  free  act  of  a  capable  mind. 
Hence,  the  execution  would  not  be  good  if  one  of  the  attesting  wit- 
nesses were  at  the  time  insane,  or  a  little  child  incapable  of  under- 
standing why  he  wrote  or  made  his  mark  as  others  told  him,  even 
though  it  might  happen  by  the  time  of  probate  that  such  witness 
had  gained  his  full  or  matured  reason  and  imderstanding.  But 
this  converse  principle  has  sometimes  been  relaxed  out  of  favor  to 
a  will  where  one  of  the  witnesses  turns  out  at  the  probate  court  (as 
often  unexpectedly  happens)  a  legatee  or  an  interested  party ;  and, 
somewhat  inconsistently,  though  on  the  whole  justly,  such  a  wit- 
ness has  been  treated  as  competent  to  prove  the  will  by  releasing 


7.  Chamberlayne  Evid.  §  2654 
cases  supra;  1  Redf.  Wills,  255,  256 
Wyndhara  v.  Chetwynd,  1  Burr.  414 


to  a  will  is  competent  at  tlie  time  of 
his  attestation,  his  subsequent  in- 
competency    shall     not     prevent     the 


2    Str.    1253;    Amory   v.    Fellowes,    5  probate  and  allowance  of  such  will." 

Mass.  219;    Sullivan  v.  Sullivan,  106  Mass.  Pub.  Stats,  c.  127,  §  2. 
Mass.  474,  8  Am.  Rep.  356;  Patten  v.  8.  Anstoy  v.  Dowsing,  2  Str.  1253, 

Tallman,  27  Me.  17;   Sullivan  v.  Sul-  1255;  Warren  v.  Baxter,  48  Me.  193; 

livan,   114  Mich.  189,   72  N.  W.  135;  Morton     v.     Ingram,     11     Ired.     368; 

Dolaveync's  Will,  102  N.  E.  1081,  259  Fisher  v.  Spence,  150  111.  253,  41  Am. 

111.  589.  St.  Rep.  360,  37  N.  E.  314;  Chamber- 

Somo  y\in<ri'an  r-odes  expressly  em-  layne  Evid.  §  2654. 
body  thi.H  ruli;  of  law.     "  If  a  witness 

436 


CHAP.  111.]  ATTESTATION   AND   SUBSCEIPTION.  §    352 

his  legacy.^  Legislation  in  inodcni  times  avoids  the  legal  embar- 
rassment of  this  latter  exception,  as  we  shall  presently  see ;  though 
somewhat  harshly/  If  a  subscribing  witness  was  competent  when 
he  signed,  a  subsequent  statute  does  not  operate  to  disqualify  him.^* 

§  352.  Mental  Disqualification  as  a  Witness;  Disqualification  of 
Children,  Women,  etc. 

We  may  lay  it  down  safely  that  idiots,  lunatics  and  insane  per- 
sons are  incompetent  to  serve  as  subscribing  witnesses  to  a  will ; 
nor  can  the  broadest  legislation  of  our  day  which  sustains  the 
validity  of  a  will  against  the  incompetency  of  witnesses,  be  sup- 
posed to  justify  attestation  of  so  impolitic  a  sort.^  Infants  less 
than  fourteen  years  may  also  be  presumed  incompetont  witnesses, 
as  they  certainly  are  undesirable  ones ;  but  the  real  test  being  a 
defect  of  understanding  in  one  so  young,  this  presumption  may  b© 
removed  by  proof  to  the  contrary.^  A  minor  above  fourteen  is 
prima  facie  competent.*  Onc^  who  does  not  understand  the  language 
in  which  the  will  is  written  is  disqualified  under  the  Roman, 
French  and  Spanish  law,  and  in  some  American  codes.^ 

9.  See    Lowe    v.    Joliffe.    1    W.    Bl.  §   3;   Jackson  v.  Denniston,  4  Johns. 

365;     Goodtitle     v.     Welford,    Dougl.  311;  post,  §  357. 

139;    also    comments    of    Judge    Red-  la.  Cocliran  v.  Brown,  78  A.   1072, 

field   in    1   Redf.    Wills,    256,   257;    1  76  N.  H.  9    (executor  given  the  resi- 

Jarm.  Wills,  70.   Mr.  Jarman  appears  due  of  the  estate  for  his   trouble   in 

to  be  right  in  impugning  the  general  settling  it). 

theory   that    the    "credibility"    of    a  2.   1  Jarm   Wills,   111,  argues  with 

witness    refers    to    any    other    period  force  against   the  theory  that  Act   1 

than     the     date     of     execution.       lb.  Vict.  c.  26,  §  14,  dispenses  with  com- 

Nevertheless,    however    inconsistently  petent    witnesses    in    any    such    sense 

in      principle,      common-law      courts  as  this. 

came  to  recognize  the  right  of  a  lega-  3.  1  Redf.  Wills,  253,  note;  Cham- 
tee  to  testify  at  the  probate  after  re-  berlayne  Evid.  §  2654;  Carlton  v. 
leasing  his  interest.  Cases  supra.  Carlton,  40  N.  H.  14. 
But  the  ecclesiastical  courts  appear  4.  Jones  v.  Tebbetts,  57  Me.  572. 
to  have  favored  the  opposite  conclu-  The  rule  here  applied  to  infants  is 
sion.  1  Jarm.  Wills,  supra;  Doe  v.  the  usual  one  concerning  the  testi- 
Hersey,  4  Burn.  Ecc.  L.  27.  mony  of  such  persons.     Schoul.  Dom. 

1.  Acts  25  Geo.  II.  c.  6;   1  Vict,  c  Rel.  3d  Ed.  §  398. 

26,  §§  14,  15;  Mass.  Pub.  Stats,  c.  127,  5.  Dauterive's    Succession,    39    La. 

Ann.   1092,  3  So.  341.     See  ib.  as  to 

437 


§    353  LAW  OF  WILLS.  [PAKT  HI. 

Apart  from  considerations  of  marital  interest  presently  to  be 
noticed,  the  common  law  does  not  appear  to  raise  any  sexual  bar- 
rier to  the  attestation  act.  But  some  of  our  local  codes  are  peculiar 
in  this  respect.  Thus  in  Louisiana  women  were  made  absolutely 
incapable  of  witnessing  testaments,  though  they  were  held  compe- 
tent to  prove  a  testator's  handwriting  when  that  fact  had  to  be  es- 
tablished on  the  probate.*^ 

§  353.  Disqualification  of  Interest  in  a  Subscribing  Witness. 

But  the  disqualification  of  interest  is  that  which  courts  have 
chiefly  to  consider  where  the  competency  of  a  subscribing  witness 
is  drawn  in  question.  One  who  has  an  immediate  beneficial  in- 
terest in  a  will  is  at  the  common  law  disqualified  from  becoming  a 
subscribing  witness  thereto;  he  is  neither  "competent"  nor 
"  credible,"  in  the  sense  of  the  statute;  and  the  test  of  competency 
is  the  state  of  facts  when  the  will  was  made  and  not  when  it  comes 
into  operation.^  This  policy  extends  to  those  beneficially  inter- 
ested who  are  not  subscribing  witnesses ;  and  such  persons  cannot 
testify  to  the  execution  of  a  will.^ 

The  interest,  to  be  disqualifying,  must  be,  however,  a  present, 
certain  and  vested  interest.^  That  one's  mother  or  father  is  named 
as  principal  devisee  does  not  render  a  witness  incompetent  to  sub- 
deaf  persons,  where  a  will  is  die-  survived.  Trinitarian  Church  Re,  91 
tated.  Me.  416,  40  A.  325. 

6.  Roth's  Succession,  31  La.  Ann.  8.  Miltenberger  v.  Miltenberger,  78 
31.5.                                                                     Mo.   27.      See   Mercer   v.   M'ackin,    14 

7.  Hindson  v.  Kersey,   1  Burr.  97;       Bush   434. 

Haven  v.  Hilliard,  23  Pick.  10;  Spar-  A   devisee  under   a   holograph   will 

•hawk    V.    Rparhawk,    10    Allen    155;       is  competent  to  prove  it;   for  such  a 
Frink  v.  Pond,  46  N.  H.  125;  Lord  v.      will    requires    no    attesting    witness. 
Ix)rd,  58  N.  H.  7,  42  Am.  Pvep.   565;       Hampton  v.  Hardin,  88  N.  C.  592. 
Slingluff  v.   Bruner,   174   111.   561,   66  9.  Jones   v.   Tebbetts,   57   Me.   572; 

Am.  St.  Rep.  318,  51  N.  E.  772.  One  Hawes  v.  Humphrey,  9  Pick.  350,  20 
to  whom  a  legacy  is  left  in  case  Am.  Dec.  481;  Lord  v.  Lord,  58  N.  H. 
another  specified  p>erson  dies  before  7,  42  Am.  Rep.  565.  And  as  to  a 
the  testator  is  not  a  competent  wit-  married  woman's  will,  see  Camp  v. 
ness,    though    that    person    actually      Stark,  81*  Penn.  St.  235,  22  Am.  Rep. 

743.     But  cf.  91  Me.  416,  40  A.  325. 

438 


OHAP.  III.]  ATTESTATION   AND   SUBSCRIPTION.  §    354 

scribe,  even  though  the  latter  receive  a  gift  besides  at  the  date  o£ 
execution.^  An  heir  at  law,  who  is  disinherited,  is  likewise  a  com- 
petent witness  in  support  of  the  will  which  disinherits  him;  so, 
too,  when  he  takes  a  legacy  under  the  will  of  less  value  than  his 
interest  would  have  been  without  the  will.^  And,  generally  speak- 
ing, a  witness  may  be  produced  to  testify  against  his  interest  with- 
out legal  disqualification.^  If  it  stand  indifferent  to  the  witnesses 
whether  the  will  under  which  they  are  legatees  and  which  they 
have  subscribed  be  valid  or  not,  they  are  pronounced  credible.* 

The  dominant  purpose  of  such  legislation  is  simply  that  the 
witnesses  to  whom  the  testator  intrusts  the  establishment  of  his 
intent  in  probate  shall  be  free  from  any  bias  or  temptation  to  es- 
tablish, such  as  a  pecuniary  interest  would  engender.'' 

§  354.  The   Same   Subject:    Judges,   Executors,    Incorporators, 
etc. 

A  judge  of  probate  or  other  judicial  officer  is  a  competent  sub- 
scribing witness  to  a  will ;  at  all  events,  where  the  issues  of  probate 
may  be  tried  before  some  one  else.^  Nor  is  an  executor,  according 
to  current  opinion,  incompetent,  even  though  by  the  American  rule 
his  right  to  commissions  and  compensation  gives  him  a  sort  of 
pecuniary  interest  under  tie  will ;  ^  while  the  English    Statute  of 

1.  Nash  V.  Reed,  46  Me.  168;  Al-  and  v.  Jones,  1  Cal.  488.  See  also  79 
len  V.  Allen,  2  Overt.   172.     And  see      Me.  25,  8  A.  87;  supra,  §  23. 

Old  V.  Old,  4  Dev.  500.  7.  Wyman    v.    Symmes,    10    Allen, 

2.  Smalley  v.  Smalley,  70  Me.  545,  153,  103  Minn.  286,  114  N.  W.  838; 
35  Am.  Rep.  353;  Sparhawk  v.  Spar-  Reeve  v.  Crosby,  3  Redf.  (N.  Y.)  74; 
havrk,  10  Allen,  155;  §  358.  Stewart  v.  Harriman,  56  N.  H.  25,  22 

3.  Clark  v.  Vorce,   19   Wend.   232;  Am.    Rep.    408;    Murphy   v.    Fogg,    7 

1  Greenl.  Evid.  §  410.  Fla.  292,  68  Am.  Dec.  441;   Richard- 

4.  Bac.  Abr.  Wills,  D.  Or  "  disin-  son  v.  Richardson,  35  Vt.  238 ;  Jones 
terested."  70  Me.  548,  35  Am.  Rep.  v.  Larrabee,  47  Me.  479;  161  Penn. 
353.  St.  393,  29  A.  3;  67  N.  H.  254,  68  Am. 

5.  See  91  Me.  421,  40  A.  325.  St.   Rep.   661.   32   A.   158.     Our   local 

6.  McLean  v.  Barnard,  1  Root,  462;  codes   are  frequently  explicit  on  this 

2  Root  232.  Statutes  are  sometimes  subject.  See  1  Jarm.  Wills,  73,  Bige- 
specific  on  this  point.  And  see  as  to  low's  note.  See  Rehard's  Estate,  143 
the  alcade  under  Mexican  law.  Pan-      N.    W.    1106     (attorney   for    executor 

competent). 

439 


§  354 


LAW  OF  WILLS. 


[part  III. 


Victoria  expressly  declares  (in  a  country  where  such  trusts  have 
always  been  esteemed  voluntary  and  gratuitous)  that  an  executor 
shall  be  an  admissible  witness.*  IsFevertheless,  we  regard  an  execu- 
tor who  intends  to  accept  the  trust  as  a  most  undesirable  person 
for  subscribing  witness,  and  one  whose  bias  in  a  close  contest 
might  break  down  the  will ;  and  some  States  appear  to  regard  an 
executor  as  competent  only  when,  having  declined  or  renounced 
the  tiiist,  he  is  clearly  disinterested.^ 

An  original  corporator  and  member  of  a  charitable  corporation- 
is  a  competent  witness  to  a  will  which  gives  property  to  the  cor- 
poration.^ And  so  may  be  an  inhabitant  of  some  town  or  munici- 
pal corporation  to  which  property  is  devised  or  bequeathed  for 
charitable  or  educational  purposes.^  For  here  the  individual's 
beneficial  interest  is  deemed  too  remote  to  disqualify  him  from 
testifying  in  favor  of  the  will.^  A  bequest  to  a  person  strictly  in 
tnist  for  another  is  not  to  be  pronounced  a  direct  beneficial  interest 
such  as  to  disqualify  him.^ 


8.  Stat  1.  Vict.  c.  26,  §  17.  An 
executor  who  is  entitled  to  a  legacy 
in  that  character  may  be  a  compe- 
tent witness  if  lie  releases  his  legacy. 

2  Curt.  72;    1  Wms.  Exrs.  345.     And 
see  Bettison  v.  Bromley,  12  East.  250. 

9.  See  Snyder  v.  Bull,  17  Penn.  St. 
54;  Tucker  v.  Tucker,  5  Ired.  161; 
Schoul.  Exrs.  §  1076  (Vol.11.)  ;  Jones 
V.  Tjarrabee,  47  Me.  474;  Burritt  v. 
Sillir:a,n,  13  N.  Y.  93,  64  Am.  Dec. 
532.  In  Scotland,  where  the  executor 
was  one  of  the  attesting  witnesses,  it 
was  held  that  the  testament  was  null 
as  to  his  appointment,  though  it 
would  stand  in  other  respects.  Tait 
Evid.  84. 

An  executor  may  release  his  pe- 
cuniary interest  under  the  will  and 
etand  the  better  qualified  as  a  witness. 

3  Redf.   (N.  Y.)    74. 

1  Ouinn  v.  Shields,  62  Iowa  120, 
17  N.  \V.  437,  49  Am.  Rep.  141. 


2.  Cornwell  v.  Isham,  1  Day  35; 
Warren  v.  Baxter,  48  Me.  193;  Lor- 
ing  V.  Park,  7  Gray,  42;  1  N.  H.  273; 
Jones  V.  Habersham,  63  Ga.  146;  79 
Me.  25,  8  A.  87. 

3.  But  if  the  will  were  in  favor  of 
some  private  business  corporation, 
semble  that  a  stockholder  therein 
would  bbe  disqualified  by  reason  of 
interes^t.  Though  not  where  the  aim 
of  the  bequest  is  charitable.  Marston 
Ex  parte,  79  Me.  25,  8  A.  87.  See 
Hitchcock  V.  Shaw,  160  Mass.  140,  65 
N.  E.  671,  72  Me.  156;  Boyd  v. 
McCk)nnell,  70  N.  E.  649,  209  111.  396 
(trustee  of  a  college)  ;  Jeanes's  Es- 
tate, 77  A.  824,  228  Penn.  537  (officer 
of  a  company)  ;  Stinson's  Estate,  81 
A.  207,  232  Penn.  218. 

4.  Creswell  v.  Creswell,  L.  R.  6  Eq. 
69.  And  see  Loring  v.  Park,  7  Gray 
42.  But  as  to  making  the  trustee 
under  the  will   a  competent   witness. 


440 


CHAP,  in.]  ATTESTATION   AND   SUBSCRIPTION.  §    356' 

§  355.  The  Same  Subject:  whether  Husband  and  Wife  are  Com- 
petent for  One  Another. 

The  wife,  according  to  the  better  opinion,  should  not  he  witness 
to  her  husband's  will,  nor  the  husband  to  his  wife's  will ;  a  rule 
which  conforms  to  the  old  law  of  coverture.^  And  where  a  devise 
or  bequest  is  given  to  either  the  husband  or  wife  of  an  attesting 
witness,  such  witness  is  usually  to  be  deemed  a  disqualified  party.® 
In  view,  however,  of  our  later  marital  policy,  more  favorable  to 
the  independence  of  spouses  than  formerly,  it  is  well  for  the  statute 
of  wills  to  be  more  precise  on  this  point,  and  the  Statute  of  Vic- 
toria furnishes  an  example  accordingly.^  If  the  executor  named 
be  a  competent  subscribing  witness,  so  may  be  the  wife  of  such 
executor.^ 

§  356.  Creditor   or   Remote   Beneficiary,   whether   a   Competent 
Subscribing  Witness. 

Whether  a  creditor  must  be  treated  as  an  incompetent  subscrib- 
ing witness  to  a  will  by  reason  of  his  direct  interest  under  certain 
circumstances,  is  not  clearly  determined.  But  the  policy  of  Eng- 
lish and  American  legislation  prevents  their  disqualification  even 
where  the  will  makes  an  express  charge  of  real  or  personal  prop- 
note  what  is  said  as  to  executors  and  Iowa,  443;  70  Iowa  343,  30  N.  W. 
their  pecuniary  interest,  supra;  also  608.  This  rule  is  liable,  of  course,. 
§    357.  to   be   affected    by   the   latest    "  mar- 

5.  Pease  v.  Allis,  110  Mass.  157,  14  ried  women's  legislation  "  in  any 
Am.  Rep.  591;  Dickinson  v.  Dickin-  State.  See  Giddings  v.  Turgeon,  58 
son,  61  Penn.  St.  401;  Smith  v.  Vt.  106;  Sloan's  Estate,  56  N.  E.  953, 
Jones,  68  Vt.  132,  34  A.  424    (where      184   111.    579. 

there  had  been  an  ante-nuptial  exclu-  7.  See    Act    1    Vict.    c.    26,    §    15, 

sion)  ;  Fisher  v.  Spence,  150  111.  253,  which  annuls  all  gifts  to  the  husband 
41  Am.  St.  Rep.  360,  37  N.  E.  314;  or  wife  of  an  attesting  witness.  As 
Holt's  Will,  56  Minn.  33,  45  Am.  St.  to  the  wife  of  a  legatee  or  devisee 
Rep.  434,  57  N.  VV.  219;  60  N.  E.  706,  see  Hatfield's  Will,  122  P.  63  (Col. 
157  Ind.  49.  App.).     And   as   to   the   wife   of   the 

6.  Sullivan  v.  Sullivan,  106  Mass.  executor  named,  see  Rowlett  v. 
474;  Winslow  v.  Kimball,  25  Me.  Moore,  96  N.  E.  835,  252  111.  436 
493;  67  N.  H.  254;  1  Johns.  Cas.  163.       (statute  disqualifies). 

Contra,     Hawkins     v.     Hawkins,     54  8.  §   354. 

441 


§    357  LAW  OF  WILLS.  [PAET  III. 

erty  to  secure  the  debt.®  Persons  to  be  remotely  benefited  under 
a  will  are  not  readily  to  be  pronounced  incompetent  witnesses,  so 
as  to  imperil  a  will ;  ^  and  where  there  is  a  sufficiency  of  witnesses, 
after  leaving  out  one  of  doubtful  competency,  the  will,  of  course, 
is  to  be  upheld.^ 

§  357.  Legacies  or  Devises  to  Attesting  Witnesses  annulled  by 
Statute. 
We  have  observed  that  the  hardship  of  breaking  dawn  a  will, 
through  some  inadvertent  selection  of  a  witness  who  himself 
might  have  been  quite  unconscious  of  his  interest,  led  common-law 
courts  to  avoid  the  worst  mischief  by  permitting  such  a  witness 
to  release  his  interest  at  the  probate,  and  so  render  himself  compe- 
tent.^ But  this  permission,  which  was  not  clearly  conceded  by  all 
tribunals,  must  have  been  liable  to  great  abuse ;  it  was  accorded 
against  legal  consistency;  and  the  very  option  to  release  invested 
such  a  witness  with  such  undue  power  for  destroying  or  saving  the 
will  at  his  own  choice,  that  sinister,  secret  and  corrupt  bargains 
for  purchasing  his  goad  will  must  have  followed.  The  English 
Parliament  soon  adopted  another  expedient  for  avoiding  the  sacri- 
fice of  an  entire  will  on  the  one  hand,  and  the  arbitrary  choice  of 
an  interested  witness  on  tlie  other;  namely,  to  annul  absolutely  all 

9.  The  English  statute  25  Geo.   II.  a    fellms'-membor    to    that    order    as 

c.  6,  §  2,  expressly  provides  that  cred-  renders    them    incompetent.      Will    v. 

itors   whose   debts   are  charged   by   a  Sisters,    67    Minn.    335.      A   taxpayer 

will  or  codicil  shall,  nevertheless,  be  of  a  town  which  receives  a  legacy  in 

good  subscribing  witnesses.    And  this  trust   for   schools,   a  town  library   or 

provision   is  confirmed   and  extended  other  like  charitable  purposes  is  com- 

by  Act  1  Vict.  c.  26,  §  16.  potent     as     a     subscribing     witness. 

Similar  legislation  may  be  found  in  Hitchcock   v.    Shaw,    160   Mass.    140; 

Massachu-setts,   New   York,   New   Jcr-  Piper  v.  Moulton,  72  Me.  156;  79  Me. 

sey,  and  many  other  American  States.  50.     So  tiie  prospective  heirs  at  law 

1  Jarm.  Wills,  71,  73,  American  note;  of  a  legatee  are  competent,   for  they 

Stimson's  Am.  Stat.  Law,  §  2648.  take   nothing  under  the  will.     Jones 

1.  E.    (].    members    of    a    religious  v.  Tebbetts,  57  Me.  572. 
order,   who  .surrender  to  it   all   their  2.  See  Faux  Re,  W.  N.  249   (1888). 

^  property,   have   no   such   certain    and  3.  Supra,  §  351. 

'  vested  interest  in  what  is  devised  by 

442 


CHAP,  in.] 


ATTESTATION   AND   SUBSCRIPTION. 


§  357 


beneficial  devises  and  legacies  to  attesting  witnesses,  and  render 
such  persons  competent  to  all  other  intents  in  spite  of  a  testator's 
heedlessness  or  their  own.  This  doctrine,  which  was  first  embodied 
in  Stat.  25  Geo.  II.,  c.  6,  has  been  extended  and  firmlj  established 
by  the  Act   1  Vict.  c.  26.* 

In  most  parts  of  the  United  States  similar  legislation  may  be 
found,  and  witnesses  to  a  will  are  rendered  incapable  of  taking 
any  beneficial  interest  under  the  will,  unless  there  be  the  statutory 
number  of  competent  witnesses  without  them,  while  they  stand 
competent  to  prove  the  will  in  all  other  respects.^  Harsh  as  such 
a  policy  may  be  thought,  it  appears  to  work  well ;  more  care  is 
taken  than  formerly  in  the  attestation  of  wills,  and  the  rules  of 
evidence  are  greatly  simplified. 

But  in  a  few  American  States  a  legatee  is  rendered  competent, 
by  express  legislation,  if  he  release  or  refuse  to  accept  his  legacy.® 


4.  See  1  Jarm.  Wills,  71,  72;  Appx. 
post.  Section  15  of  the  act  of  Vic- 
toria annuls  every  beneficial  devise, 
legacy,  interest,  gift,  etc.,  to  any  at- 
testing witness,  or  the  wife  or  hus- 
band of  such  witness.  The  annul- 
ment applies  of  course  only  to  the 
instrument  actually  attested,  and  not 
so  as  to  invalidate  one's  interest 
under  another  will  or  codicil.  Tem- 
pest V.  Tempest,  2  Kay  &  J.  635 ; 
Denne  v.  Wood,  4  L.  J.  57.  Under 
this  English  statute,  a  trustee  who  is 
a  solicitor,  loses  a  right  given  him 
under  the  will  to  charge  for  pro- 
fessional services,  if  he  attests.  Bur- 
gess V.  Vinicome,  31  Ch.  D.  665;  34 
Ch.  D.  77;  40  Ch.  D.  1. 

5.  See  1  Jarm.  Wills,  71,  American 
note.  New  Hampshire,  Massachu- 
setts, Connecticut,  New  York,  Vir- 
ginia, Kentucky,  Georgia,  Mississippi, 
and  most  of  the  northwestern  States 
have  adopted  provisions  of  this 
character.    In  New  York  and  various 


other  States,  the  share  which  such  a 
witness  would  have  had  in  the  estate 
had  the  will  not  been  made  to  him 
is  expressly  saved  to  him.  (See  next 
section.)  A  legatee  dying  before  the 
testator  is  also  pronounced  a  legal 
witness  in  some  of  our  codes.  And 
see  6  Mackey  98,  as  to  the  District  of 
Columbia;  and  in  general,  Stimson's 
Am.  Stat.  Law,  §  2650.  Where  two 
witnesses  would  suffice,  and  three 
persons  actually  subscribe,  one  of 
whom  proves  to  be  a  devisee  named 
in  the  will,  it  is  fair  to  treat  such 
a  devisee's  signature  as  superfluous. 
See  103  N.  C.  40,  14  Am.  St.  Rep. 
783,  9  S.  E.  644;  43  W.  Va.  300,  27 
S.  E.  323 ;  Harp  v.  Parr,  168  111.  460, 
48  N.  E.  113;  56  N.  Y.  S.  853;  Wil- 
liams v.  Way,  68  S.  E.  1023,  135  Ga. 
103. 

6.  See  statutes  of  New  Jersey, 
Missouri,  etc.,  referred  to  in  1  Jarm. 
Wills,  71,  American  note:  Stimson's 
Am.  St.  Law,  §  3650;  Nixon  v.  Arm- 


443 


§  358 


LAW  OF  WILLS. 


[part  IIL 


§  358.  Competency  of  Interested  Witnesses;  Miscellaneous  Leg- 
islation; Devise  to  Heir,  etc. 

In  Maryland,  under  a  late  statute,  an  interested  witness  may  be 
considered  competent  to  subscribe  or  sustain  a  will.^  And  there 
are  other  recent  acts  which  expressly  provide  that  a  will  shall  not 
be  void  on  account  of  the  incompetency  of  the  attesting  witnesses.^ 

In  nearly  all  of  our  United  States  a  devise  or  bequest  to  a  per- 
son who  would  inherit  under  the  laws  of  distribution  does  not  in- 
validate the  will  or  render  such  person  incompetent  as  a  witness; 
but  the  devise  or  bequest  is  good  only  so  far  as  it  does  not  exceed 
what  he  would  have  taken  by  inheritance  in  the  event  of  intes- 
tacy.^ 


strong,  38  Tex.  296;  Grimm  v.  Titt- 
mann,  113  Mo.  55,  20  S.  W.  664. 
But  republication  of  a  will  by  a  codi- 
cil referring  to  it  may  validate  the 
legacy  to  a  witness  who  attests  the 
will  but  not  the  codicil.  (1899)  1 
Ch.  764.     See  §  441. 

7.  Estep  V.  Morris,  38  Md.  417; 
Kumpe  V.  Coons,  63  Ala.  448. 

8.  See  the  peculiar  and  somewhat 
vague  expression  of  1  Vict.  c.  26,  §  14. 

Recent  statutes  which  extend  the 
competency  of  interested  witnesses 
and  original  parties  to  testify  in  civil 
and  criminal  proceedings,  often  make 


express  exception  of  the  attesting 
witnesses  to  a  will  or  codicil;  for 
here  peculiar  considerations  are  found 
to  apply.  Mass.  Gen.  Stats,  c.  131, 
§§  13,  15;  McKeen  v.  Frost,  46  Me. 
248;  Miltenberger  v.  Miltenberger,  7S 
Mo.  27. 

9.  This  seems  to  be  the  purport  of 
most  of  such  codes,  thougli  the  lan- 
guage somewhat  varies.  Stimson's 
Am.  Stat.  Law,  §  2651.  And  see 
supra,  §  23;  Maxwell  v.  Hill,  89 
Tenn.  584,  15  S.  W.  253;  Smalley  v. 
Smalley,  70  Me.  545,  35  Am.  Rep. 
353;    10  Allen  155. 


444 


CHAP.  IV.]  NUNCUPATIVE   OR  ORAL   WILLS.  §    360 


CHAPTER  IV. 

NUNCUPATIVE  OR  ORAL   WILLS. 

§  359.  Wills  and  Codicils  usually  require  a  Formal  Execution; 
Exceptions  stated;  Unattested  Wills,  Oral  Wills,  etc. 

Wills,  under  the  policy  of  our  modem  legislation,  English  and 
American,  are  generally  to  be  executed  with  all  the  formalities  of 
vvritten  expression,  signature,  and  attestation,  which  our  pre<jed- 
ing  chapters  have  set  forth  in  detail ;  and  under  the  term  "  wills  " 
in  this  connection  are  included  codicils  and  every  sort  of  testa- 
mentary disposition. 

But,  as  we  have  shown,  there  are  various  American  codes  which 
dispense  to  some  extent  with  the  formal  attestation  of  witnesses ;  ^ 
and  holograph  wills,  or  those  written  out  by  the  testator's  own 
hand,  are  peculiarly  favored  in  this  respect,  especially  when  the 
disposition  relates  to  personal  property  only.^  And  wills  of  this 
character,  though  informally  executed  in  a  certain  sense,  must  not 
only  be  expressed  in  writing,  but,  as  the  code  itself  declares,  receive 
the  testator's  signature  to  authenticate  it.  There  remains,  how- 
ever, for  consideration  a  class  of  wills  still  more  informal  in  char- 
acter, and  in  fact  founded  upon  a  testamentary  disposition  purely 
oral,  though  afterwards  committed  to  writing.  These  oral  or  un- 
written wills,  properly  styled,  where  non-execution  is  in  the 
broadest  sense  an  incident,  let  us  now  proceed  to  consider. 

§  360.  Oral  or  Nuncupative  Will;  Definition;  Such  Wills  rarely 
permitted. 
This  oral  will  is  usually  designated  at  our  law  by  the  term 
^'  nuncupative,"  which  we  borrow,  like  the  testament  of  this  char- 
acter, from  the  Roman  civilians.  A  nuncupative  will  is  an  oral 
will  declared  by  a  testator  before  witnesses,  and  afterwards  re- 
duced to  writing.     The  law  supposes  such  a  will  to  be  made  in 

1.  Supra,   §   254.  2.  Supra,   §   255. 

44.5 


§    361  LAW  OF  WILLS.  [pAKT  III. 

extremis  or  under  circumstances  fairly  equivalent,  such  as  pre- 
vented him  from  executing  a  more  formal  one.^  We  shall  see 
presently,  however,  that  the  instances  are  very  rare  where  testa- 
ments of  this  description  are  by  our  modem  English-inspired  codes 
allowed  any  legal  validity  those  exceptions  being  specified  by  the 
local  statute  itself. 

§  361.  History   of  Nuncupative  Wills  prior  to   the   Statute  of 
Frauds. 

In  the  ancient  days  of  our  common  law,  and  before  the  general 
cultivation  of  letters,  the  doctrine  of  nuncupative  wills  appears  to 
have  maintained  a  firm  footing.  Derived  originally  from  the 
Roman  jurisprudence,  it  was  incorporated  into  our  Anglo-Saxon 
system,  and  acted  upon  proprio  vigore,  long  before  the  Statute  of 
Frauds  and  the  Statute  of  Wills.  According  to  the  Institutes  of 
Justinian,  if  one  wished  to  dispose  of  his  effects  by  what  our  com- 
mon law  denominates  a  nuncupative  or  unwritten  testament,  he 
might  do  so  by  a  verbal  declaration  in  the  presence  of  seven  wit- 
nesses.* ISTo  immediate  reduction  to  writing  of  such  a  testament 
appears  to  have  been  necessary;  but  the  disposition  might  rest  in 
parol  proof  until  after  the  testator's  death;  though  such  was  not 
always  the  case.  It  was  sufficient  if  the  witnesses,  wivhin  a  rea- 
sonable time  after  the  death  of  the  testator,  went  before  a  magis- 
trate, and  gave  an  account  of  what  took  place;  a  formal  statement 

3.  4  Kent,  Com.  576;  2  Bl.  Com.  unwritten.  "In  this  latter  passage 
500;  Bouvier  Diet.  ''Nuncupative  of  the  proceeding  the  testator  either 
Will";  supra,  §  6.  orally  declared  to  the  assistants  the 

4.  Just.  Inst.  lib.  2,  tit.  10,  §  14.  wishes    which    were    to    be    executed 
Although   the    "  nuncupative   will  "      after  his  death,  or  produced  a  written 

is,   by   our   time-honored    phrase,   the  document   in   which   his   wishes   were 

unwritten    will    above    described,    we  embodied."       Maine's     Ancient     Law. 

may  well  question  whether  the  nun-  212.    The  Louisiana  code,  as  we  shall 

cupatio  of  the  civilians  was  necessar-  presently  see,  conforms  quite  closely 

ily   confined   to   such   wills.      The   es-  to  such  a  theorj' of  nuncupative  wills; 

Bonse    of    this    nuncupatio    sooms    to  stating  them  such  because  they  were 

have  consisted  rather  in  an  oral  pub-  openly   declared,    in   distinction    from 

lication  of  what  htul  been  written  or  wills  secretly  expressed. 

44G 


CHAP.  TV.]  NUNCUPATIVE   OR  OEAL  WILLS.  §    361 

being   then    drawn  up  and  signed,  the  proof  of  the  will  was  per- 
petuated.^ 

Such,  in  general  substance,  was  the  nuncupative  will  of  the 
common  law,  as  Swinburne  described  it,  with  the  requirement 
omitted  of  so  many  witnesses;  and  yet  admitting  of  a  purely  ver- 
bal disposition  until,  from  the  lips  of  a  witness  or  witnesses  suffi- 
cient for  proving  it,  the  will  was  put  into  writing  and  properly 
shaped  for  pennanent  preservation  and  record.  The  testator  ut- 
tered his  wishes;  it  did  not  follow,  however,  that  he  inspected  what 
was  afterwards  writt^i;  out,  but  usually  the  reverse,  as  his  death 
speedily  followed.  "  In  making  a  nuncupative  will,"  says  Swin- 
burne, "  this  is  chiefly  to  be  observed,  that  the  testator  do  name 
his  executor,  and  declare  his  mind  by  word  of  mouth,  witliout  writ- 
insr  before  witnesses ;  no  precise  form  of  words  is  required,  so 
that  the  testator's  meaniEg  do  appear."  ^  And  again  he  observes: 
"A.  nuncupative  testament,  is  when  the  testator,  without  any  writ- 
ing, doth  declare  his  will  before  a  sufficient  number  of  witnesses. 
It  is  called  nuncupative,  because,  when  a  man  makes  such  a  testa- 
ment, he  must  name  his  executor,  and  declare  his  whole  mind 
before  witnesses."  ^  Perkins,  in  his  book  which  was  published 
under  Henry  VIII.,  still  earlier,^  defines  a  nuncupative  will,  as 
properly  made  when  the  testator  "  lieth  languishing  for  fear  of 
sudden  death,  dareth  not  to  stay  the  writing  of  his  testament,  and, 
therefore,  he  prayeth  his  curate  and  others,  his  neighbors,  to  bear 
witness  of  his  last  will,  and  declaretb  by  word  what  is  his  last 
will."  ^     Whether  in    the    days  of  our  English  law,  nuncupative 

5.  See  Prince  v.  Hazleton,  20  this  declaration  before  witnesses. 
Johns.  519.  Supra,  §  6. 

6.  Swinb.  pt.  4,  §  29,  p.  350.  8.  Swinburne's    treatise    was    pub- 

7.  Swinb.  pt.  1,  §  12,  p.  58.     That  lished  in  the  time  of  James  I. 

the  naming  of  an  executor  is  not  an  9.  Perkins,  §  476.     Perhaps  this  de- 

essential  to  any  will  in  modern  times,  schibes  the  actual  instance  or  oc- 
nor  a  total  dispositior  of  the  estate,  casion  when  nuncupative  wills  are 
see  supra,  §  297;  Hubbard  v.  Hub-  desirable,  and  the  safe  mode  of  mak- 
bard,  8  N.  Y.  202.  The  term  "nun-  ing  them,  rather  than  undertaking  to 
cupative "  is  appropriate  because  of  define  the  true  limits  of  such  testa- 
ments. 
447 


§    363  LAW  OF  WILLS,  [part  III, 

wills  were  necessarily  to  be  pronounced  invalid,  unless  made  in 
extremis,  or  when  one  was  sick  and  in  fear  of  death,  is  uncertain ; 
probably  before  the  fifteenth  century  they  were  not,  nor  perhaps 
were  they  even  as  late  as  the  enlightened  times  of  Henry  VIII., 
Elizabeth,  and  the  first  James.  But  by  the  latter  date  nuncupa- 
tive wills  were  certainly  confined  in  practice  to  extreme  cases,  as 
both  Perkins  and  Swinburne  intimate.^  Under  the  Roman  law, 
with  its  strong  array  of  surrounding  witnesses,  sickness  and  last 
extremity  made  no  indispensable  condition  of  such  testaments ; 
probably,  because  the  safeguards  against  fraud  were  thought  suffi- 
cient without  it.^ 

§  362.  Nuncupative  Wills  affected  Personal  but  not  Real  Estate. 

The  nuncupative  will,  under  such  conditions,  was  as  efficacious 
as  any  testament  in  writing,  so  far  as  related  to  the  testator's  per- 
sonal estate  alone.  But  lands,  tenements  and  hereditaments, 
being  the  subject  of  devise  by  force  only  of  the  statutes  of  Henry 
VIII.  (32  and  34  Hen.  VIII.),  a  nuncupative  devise  must  have 
been  of  too  informal  a  character  to  operate.^ 

§  363.  Restraints  upon  Nuncupative  Wills  under  the  Statute  of 
Frauds. 
In  the  twenty-eighth  year  of  Charles  II.,  a  case  was  tried  whiclv 

1.  Swinburne  observes:  "This  kind  bad  at  common  law  unless  in  ex- 
of  testament  is  commonly  made  when  tremis.  they  had  by  Swinburne's  time 
the  testator  is  very  sick,  weak,  and  becom-e  confined  practically  to  such 
past  all  hope  of  recovery."  Swinb.  instances;  a  doctrine  which  the  Eng- 
pt.  1,  §  12,  p.  58.  Woodworth,  J.,  in  lisii  law  writers  had  ever  since  sup- 
Prince  V.  Hazleton,  20  Johns.  519,  ported.  And  see  42  N.  J.  Eq.  625. 
considers  the  impression  erroneous  2.  Opinion  of  Woodworth,  J.,  in 
tiiat  our  law  differed  at  all  from  the  Prince  v.  Hazleton.  supra,  where, 
civil,  in  making  it  of  the  essence  of  a  however,  the  precaution  of  requiring 
nuncupative  will  that  it  be  made  in  seven  witnesses  is  not  taken  sufFicient- 
extremis.  But  the  language  of  Chan-  ly  into  account,  nor  the  comparative 
cellor  Kent  ( ib.  511),  which  gives  a  illiteracy  of  Roma.n3,  nor  the  pecu- 
more  literal  import  to  the  expressions  liarity  of  their  social  institutions, 
of  Swinburne  and  Perkins  in  the  3.  Supra,  §§  15,  253.  And  see 
passages  above  cited,  concludes  that  §  365,  post,  for  rule  of  American 
while  unwritten  wills  were  not  always  codes. 

448 


CHAP.  IV.]  NUNCUPATIVE   OR  ORAL   WILLS.  §    3G3 

involved  a  foul  conspiracy  to  set  up  a  nuncupative  will.  A  man 
advanced  in  years  married  a  young  woman  whose  conduct  during 
his  life  exposed  her  to  scandal.  After  his  death,  she  set  up  as  against 
a  written  will  he  had  made  three  years  before,  a  nuncupative  testa- 
ment, said  to  have  been  made  by  him  while  in  extremis  before  nine 
witnesses.  The  court  of  probate  rejected  this  later  testament, 
and  on  appeal  to  the  delegates  and  a  trial  held  at  the  King's  Bench. 
it  appeared  in  proof  that  most  of  the  witnesses  for  the  nuncupa- 
tive will  were  perjured  and  that  the  widow  herself  was  guilty  of 
subornation  of  perjury.  Lord  Chancellor  Nottingham  said  on 
this  occasion  that  he  hoped  "  to  see  one  day  a  law,  that  no  written 
will  should  ever  be  revoked  but  by  writing."  ■* 

Lord  Nottingham,  it  is  known,  bore  a  conspicuous  part  in  pro- 
curing the  passage  of  the  Statute  of  Frauds  in  Parliament,  which 
famous  enactment  bears  the  date  of  29  Charles  II.  (1676-77),  or 
the  year  following.^  The  frauds  and  perjuries  to  which  nuncupa- 
tive wills  were  liable  made  one  of  the  objects  which  that  legisla- 
tion sought  to  correct.  Accordingly,  such  testaments  were  at  once 
laid  under  strong  restrictions  v/hich  English  policy  has  never  since 
taken  off.  And  the  only  real  and  lasting  exception  t-o  these  re- 
strictions was  declared  in  favor  of  "  any  soldier  being  in  actual 
military  service,  or  any  mariner  being  at  sea  " ;  the  British  army 
and  navy  being  thus  secured  in  the  full  benefit  of  that  testamen- 
tary privilege  which  the  Roman  soldier  had  enjoyed.^ 

"  For  prevention  of  fraudulent  practices  in  setting  up  nuncupa- 
tive wills,  which  have  been  the  occasion  of  much  perjury,"  the 
Statute  of  Frauds  prescribed  as  follows,  with  the  resei'vation, 
above  noticed,  in  favor  of  soldiers  and  mariners :  ISTo  nuncupative 
will  shall  be  good  where  the  estate  bequeathed  exceeds  the  value  of 
thirty  pounds,  (1)  unless  it  is  proved  by  the  oath  of  three  witnesses 

4.  Coles  V.  Mordaunt,  4  Ves.  196,  nowned  a  piece  of  legislation,  see  18 
note.  Am.    Law    Rev.    442    (1884),    by   the 

5.  Concerning    the    origin    of    that      present  writer. 

statute,  and  the  hand  taken  by  Lord  6.  Act  29   Car.  II.  §§   19-23. 

Hale    and    others    in    shaping    so    re- 

29  449 


§    364:  LAW  OF  WILLS.  [pART  III. 

at  least  who  were  present  at  the  making  thereof;  (2)  nor  unless 
it  is  proved  that  the  testator  at  the  time  bade  the  persons  present, 
or  some  of  tliem,  to  bear  witness  that  such  was  his  will,  or  to  that 
effect;  (3)  nor  unless  such  will  was  made  in  the  time  of  the  testa- 
tor's last  sickness,  and  in  his  dwelling  house,  or  where  he  had  re- 
sided for  at  least  ten  days  next  before  making  the  will,  except 
where  he  was  surprised  or  taken  sick  while  away  from  his  own 
home  and  died  before  he  returned;  (4)  nor  generally''  unless  the 
substance  of  the  testimony  to  prove  such  a  will  was  committed  to 
writing  within  six  days  after  the  will  was  made.  The  same  statute 
introduced  new  safeguards  against  the  hasty  probate  of  nuncupa- 
tive wills ;  and  proceeded  to  declare  that  no  written  will  should  be 
repealed  or  altered  by  oral  words  not  reduced  into  a  written  shape 
during  the  testator's  life  and  allowed  by  him  before  three  witnesses 
at  least.^ 

§  364.  Nuncupative  Wills  virtually  abolished  by  Statute  of  Vic- 
toria, except  as  to  Soldiers  and  Mariners. 
Even  under  these  restraints,  the  nuncupative  will  has  become 
obnoxious  to  modem  policy,  and  since  1837  has  been  virtually 
abolished  in  England.  For  now  by  the  new  Statute  of  Wills  (1 
Vict.  c.  26)  nuncupative  wills,  and  indeed  testaments  of  all  kinds 
which  are  informally  executed,  are  altogether  invalid  and  of  no 
legal  effect.^  But  the  old  exception  in  favor  of  soldiers  and  mari- 
ners has  by  this  act  been  expressly  retained ;  ^  and  that  execpt-ion, 
let  us  constantly  remember,  applies,  like  the  old  nuncupative  dis- 
position itself  in  all  other  instances,  to  wills  of  personal  property 
only ;  since  at  our  Anglo-Saxon  law,  land  cannot  be  devised  except 

7.  lb.  §  20.  "After  six  months  9.  Act  1  Vict.  c.  26  (1837);  1 
pa-ssed  after  the  speaking  of  the  pre-  Wms.  Exrs.  116;  Appx.  post. 
tended  testamentary  words"  (says  1.  "Any  soldier  being  in  actual 
the  statute),  "no  testimony  shall  be  military  service,  or  any  mariner  or 
received  to  prove,"  etc.,  except  as  seaman  being  at  sea,  may  dispose  of 
stated   above.  his  personal  estate  as  he  might  have 

8.  Stat.  29  Car.  II.  §§  10  23.  done  before  the  making  of  this  act." 

Act.  1  Vict.  c.  26,  §  11. 
450  ! 


CHAP.  IV.]  NUNCUPATIVE  OR  OEAL   WILLS.  §    305 

by  some  testamentary  writing  duly  signed  and  attested  before  the 
requisite  number  of  witnesses. 

§  365.  American  Legislation  and  Policy  concerning  Nuncupa- 
tive Wills. 

Our  brief  description  of  the  English  law  on  this  subject  shows 
that  two  modem  periods  of  nuncupative  jurisprudence  are  of 
peculiar  interest:  I.  That  of  1677-1837,  covered  by  writers  like 
Blackstone,  when  soldiers  and  mariners  in  service  might  make 
such  wills  freely,  but  no  other  persons,  save  under  the  peculiar  re- 
straints imposed  by  the  Statute  of  Frauds.  II.  That  subsequent 
to  1837,  when  none  are  permitted  to  make  tiiem  at  all  except  the 
soldiers  and  mariners  as  above  stated. 

Now  in  examining  the  American  codes  on  this  subject  we  find, 
naturally  enough,  enactments  in  many  of  the  older  States  which 
are  based  upon  the  Statute  of  Frauds,  and  incorporate  most  of  the 
restrictions  in  substance  of  this  first  period.  But,  to  take  the 
latest  codes  and  the  enactments  now  in  force  on  this  subject,  the 
general  invalidity  of  nuncupative  wills,  except  as  to  soldiers  and 
mariners,  and  of  all  testaments  which  are  not  properly  written  out, 
signed,  and  attested  as  the  local  act  directs,  or,  in  other  words,  tbe 
policy  of  the  second  period,  is  found  a  prominent  trait;  New  York, 
Massachusetts,  and  Virginia  being  among  the  States  which  con- 
forai  closely  to  the  latest  English  policy  on  the  subject.^ 


2.  When  the  leading  American  case  that  of  England  under  the  statute  of 
of  Prince  v.  Hazleton  (20  Johns.  503)  Victoria.  No  nuncupative  or  unwrit- 
was  decided  in  the  New  York  Court  ten  will  is  valid,  "  unless  made  by  a 
of  Errors  in  1832,  the  law  of  New  soldier  while  in  actual  military  ser- 
York  on  this  subject  was  literally  vice,  or  by  a  mariner  while  at  sea." 
that  of  the  statute  of  Charles  II.,  Hvibbard  v.  Hubbard,  8  N.  Y.  196;  2 
from  which  it  was  taken.  That  case  Rev.  Stat.  N.  Y.  p.  60,  §  22. 
shows  plainly  the  disfavor  with  In  Massachusetts,  it  is  providtd 
which  Chancellor  Kent  and  other  that  "  a  soldier  in  actual  military 
leading  jurists  of  that  State  regarded  service,  or  a  mariner  at  sea,  may  dis- 
the  setting  up  of  such  testaments  as  pose  of  his  estate  by  a  nuncupative 
made  by  those  who  were  neither  sol-  will";  and  the  context  shows  plain- 
diers  nor  sailors.  The  law  was  after-  ly  that  nuncupative  or  informally  ex- 
wards  changed,  and  now  conforms  to  ecuted  wills  are  in  other  instances  of 

451 


§  365 


LAW  OF  WILLS. 


[part  III. 


But  while  American  policy  at  the  present  day  discourages  such 
testaments,  there  are  great  variations  of  principle  under  which 
they  are  pennitted  in  the  several  States.  Many  of  our  local  codes, 
embracing  every  quarter  of  the  Union,  test  the  validity  of  the  nun- 
cupative will  further  or  rather  by  the  amount  to  be  disposed  of; 
the  limit  ranging  usually  from  $30  to  $500,  while  in  California 
and  Xevada  $1,000  may  be  thus  bequeathed.^  California,  again, 
adds  to  the  privileged  class  of  soldiers  and  sailors  persons  who  are 
expecting  immediate  death  from  injuries  received  the  same  day.* 
'Nor  should  we  overlook  the  moulding  influences  of  Continental 
Europe  in  such  States  as  Louisiana,  under  whose  code  the  nuncu- 
pative testament  signifies  broadly  an  open  testament,  while  the  old 
nuncupative  will,  as  our  common  law  understands  it,  has  been  es- 
sentially abolished.^ 


no  validity.     Mass.  Pub.  Stat.  c.  127, 
§§  6,  7. 

Recent  codes  of  Virginia,  West 
Virginia,  Rhode  Island,  Kentucky, 
Minnesota  and  Oregon  confine  the 
right  of  making  nuncupative  vrills  to 
soldiers  in  active  service  and  marin- 
ers at  sea.  And  see  Stimson's  Am. 
Stat.  Law,  §  2700;  Turner,  Ex  parte, 
24  S.  C.  211. 

3.  See  local  enactments  collected 
in  Jarm.  Wills,  97,  and  American 
notes.  This  limitation  of  value,  so 
as  to  sanction  nuncupative  disposi- 
tions of  petty  estates,  is  one  of  the 
remnants  of  the  old  Statute  of 
Frauds.  See  supra,  §  363.  Among 
the  States  cited  which  treat  nuncu- 
pative wills  of  property  beyond  a 
specified  amount  as  invalid  are  the 
following:  Maine,  New  Hampshire, 
Vermont,  New  Jersey,  Delaware, 
Maryland,  the  two  Carolinas,  Ala- 
bama, Texas,  Mississippi,  Missouri, 
Wisconsin,  Indiana,  Michigan,  Iowa 
and  ArkaiiHan. 

4.  California      code       (Ed.      1876), 

41 


§  6289.  See  also  Stimson's  Am.  Stat. 
Law.  §  2701.  The  idea  of  permitting 
a  nuncupative  will  in  cases  of  one's 
sudden  illness  and  death  while  away 
from  home,  is  expressed  with  more  or 
less  favor  in  various  local  codes. 
Stimson,   ib.   §   2702. 

5.  In  Louisiana,  verbal  testamenls 
are  not  abrogated,  and  nuncupative 
or  open  wills,  like  mystic  or  sealed 
wills,  must  be  in  writing.  The  civil 
code  of  this  State  divides  all  testa- 
ments     into      these      three      classes: 

(1)  Nuncupative  or  open  testaments; 

(2)  mystic     or    sealed     testaments; 

(3)  holographic  (or  olographic)  tes- 
taments. See  supra,  §§6,  361.  Upon 
this  fundamental  division  is  based 
the  jurisprudence  of  this  State  rela- 
tive to  nuncupative  wills,  and  cita- 
tions from  Louisiana  reports  must  be 
understood  accordingly.  The  method 
of  making  nuncupative  testaments, 
either  by  public  act,  or  by  act  under 
private  signature,  is  fully  set  forth 
in  the  revised  code  of  tliat  Stale.  See 
Rev.  Civ.  Code  La.  §  1567  et  seq.    The 


CHAP.  IV.] 


NUNCUPATIVE   OK   ORAL   WILLS. 


§     3G6 


In  general,  nnncupative  wills,  under  our  American  codes,  can- 
not dispose  of  lands,  but  of  personal  property  only;  following  in 
this  respect  tJie  rule  of  England  and  the  common  law.® 

§  366.  Soldiers,   Mariners,   etc. :  who  constitute  this   Privileged 
Class. 

Who  constitute,  we  may  first  ask,  this  privileged  class,  which  in 
England  and  many  of  our  States  have  constantly  been  permitted 


nuncupative  testament  by  public  act 
is  received  by  a  notary  public  in 
presence  of  three  resident  or  five  non- 
resident witnesses;  it  is  dictated  by 
the  testator,  written  out  by  the  not- 
ary, read  over  and  signed  by  the 
testator  and  witnesses.  The  nuncu- 
pative testament  by  act  under  pri- 
vate signature  is  written  by  the  tes- 
tator himself,  or  by  any  other  person 
from  his  dictation,  etc.;  and  here, 
too,  the  formalities  are  quite  strict, 
as  to  reading  the  will  over  in  the 
presence  of  witnesses,  after  which  the 
paper  is  duly  signed  and  attested; 
five  resident  or  seven  non-resident 
witnesses  being  here  required  except 
in  specdfied  instances.  See  also  Wood 
V.  Roane,  35  La.  Ann.  865;  Adams  v. 
Norris,  23  How.  353.  The  will,  when 
written  out,  must  contain  the  declar- 
ation that  it  was  written  by  the 
notary;  evidence  aliunde  on  this 
point  is  inadmissible.  Dorrie's  Suc- 
cession, 37  La.  Ann.  833.  As  to  dis- 
pensing with  proof  that  the  testator 
dictated  it,  when  written  out  of  the 
presence  of  witnesses,  see  39  La.  Ann. 
294,  1092,  1  So.  681,  3  So.  341.  See 
also  41  La.  Ann.  1109,  1153;  7  So. 
126;  5  So.  528;  42  La.  Ann.  1086,  9 
L.  R.  A.  829;  49  La.  Ann.  868,  1376; 
62  Am.  St.  Rep.  672,  21  So.  586;  50 
La.  Ann.  66,  23  So.  106;  50  La.  Ann. 


66.  As  to  fully  dating  the  instru- 
ment, see  48  La.  Ann.  1088,  20  So. 
281.  Almost  every  annual  volume 
of  reports  in  this  State  presents 
points  of  local  construction  (1899). 
See  also  38  So.  930  (La.  1905)  ;  28  So. 
722,  77  Miss.  892,  78  Am.  St.  Kep. 
551  (notary's  act  and  record)  ;  Rich- 
ard V.  Richard,  57  So.  286,  129  La. 
967    (statute  formalities). 

6.  See  supra,  §  362.  Some  of  our 
codes  are,  perhaps,  capable  of  a  dif- 
ferent construction;  but  if  so,  the 
right  is  created  by  the  local  statute. 
It  has  been  repeatedly  declared,  in 
construction  of  the  local  enactment, 
that  no  power  is  thereby  conferred  to 
dispose  of  real  estate  by  a  nuncupa- 
tive will,  no  such  right  having  existed 
at  the  common  law.  Page  v.  Page, 
2  Rob.  (Va.)  424;  Smithdeal  v. 
Smith,  04  N.  C.  52;  Palmer  v.  Palmer, 
2  Dana,  390;  Campbell  v.  Campbell, 
21  Mich.  438;  McLeod  v.  Dell,  9  Fla. 
451;  Maurer  v.  Reifschneider,  132  N. 
W.  197,  89  Neb.  673;  Sadler  v.  Sad- 
ler, 60  Miss.  251.  But  the  Ohio  stat- 
ute has  been  construed  as  conferring 
such  a  right.  Ashworth  v.  Carleton, 
12  Ohio  St.  381;  10  Ohio,  462.  So  has 
that  of  Texas.  MoflFett  v.  Moffett,  67 
Tex.  642,  4  S.  W.  70,  and  cases  cited. 
Of.  70  Tex.  18,  6  S.  W.  818;  139  S.  W. 
1033    (Texas). 


453 


§    366  LAW  OF  WILLS.  [PART  III. 

to  dispose  of  their  personal  property,  their  wages,  goods  and  chat- 
tels, by  word  of  mouth,  to  the  exclusion  at  length  of  all  others ;  and 
who  under  all  American  codes  strand  at  least  as  well  off  as  others 
in  such  testaments  ?  The  words  of  the  statute  sufficiently  explain 
for  the  most  part:  they  are  soldiers  in  actual  service  and  mariners 
at  sea,  or  by  whatever  similar  expression  the  legislature  may  have 
described  them. 

English  and  American  courts  agree  in  giving  to  this  language 
of  the  codes  a  very  liberal  interpretation.  The  term  "  soldier  " 
as  thus  applied  is  not  confined  to  those  who  serve  in  the  ranks, 
but  embraces  every  military  grade  from  private  to  commander- 
in-chief;  it  includes  generals,  regimental  and  line  officers,  those 
assigned  to  field  or  staff  duty,  surgeons,  all  who  hold  commissions 
or  warrants,  or  are  borne  on  the  rolls  as  enlisted  men,  provided 
the  condition  of  "  actual  military  service  "  be  fulfilled.^  English 
courts  have  treated  persons  in  the  military  service  of  the  East 
India  Company  as  "  soldiers  " ;  ^  nor  can  we  doubt  that  regulars 
and  volunteers,  when  enrolled  and  serving  at  the  call  of  govern- 
ment in  some  crisis,  belong  equally  to  this  privileged  class ; ' 
though  members  of  the  volunteer  militia  and  home  reserves  cer- 
tainly do  not,  while  pursuing  their  peaceful  occupations  as  citi- 
zens, or  parading  for  drill  or  pleasure.  As  to  "  mariners,"  a  like 
liberal  construction  prevails,  and  the  whole  marine  service  is  in- 
cluded, superior  officers  up  to  the  highest  in  command  as  well  as 
common  seamen.  The  purser  of  a  man-of-war  is  a  mariner,  in  this 
sense,  and  so  are  all  others  who  belong  to  the  navy ;  ^  and  to  those, 
moreover,  in  the  merchant  service,  docs  the  same  privilege  extend, 
to  the  captain,  for  instance,  of  a  coasting  vessel,  or  the  cook  on 
board  a  steamer.^     For  though  the  defenders  of  the  government  by 

7.  Donaldson's  Goods,  2  Curt.  386;  111;  Leathers  v.  Greenacre,  53  Me. 
5   Notes  Gas.  92;    3   Curt.   537;   Van      561. 

Deuzcr  v.  Gordon,  39  Vt.  Ill;  Leath-  1.    Hays's   Goods,    2    Curt.    338;    1 

era  v.  Greenacre,  53  Me.  561;  Spratt's  Wms.  Exrs.  118. 

Goods,  (1897)  P.  28.  2.  5    Notes     Cas.     596;     Milligan's 

8.  Donaldson's  Goods,  2   Curt.   386.  Goods,  2  Rob.  108;   1  Hapg.  51:   Par- 

9.  See  Van  Dt-uzor  v.  Gordon,  39  Vt.  ker.  Re,  2  Sw.  &  Tr.  375;  Hubbard  v. 

454 


CHAP.  IV.]  NUNCUPATIVE   OR  OR^VL  WILLS.  §    367 

land  seem  in  tlic  one  sense  to  be  singled  out  for  this  testamentary 
honor,  they  who  defend  by  sea  are  not  the  only  recipients  of  favor 
in  the  other,  nor  is  the  correspondence  of  the  two  classes  complete. 

§  367.  The  Same  Subject. 

But  the  restrictions  under  which  soldiers  and  mariners  are  ex- 
pressly laid  by  tlie  language  of  the  act  in  question  curtail  the 
privilege  considerably,  Nor  is  this  curtailment  the  same  in  either 
instance.  (1)  The  soldier  has  no  special  privilege  of  nuncupation 
by  our  law  unless  "  in  actual  military  service,"  that  is  to  say, 
*'  while  engaged  in  an  expedition,"  for  these  terms  are  taken  by 
the  courts  as  synonymous.  As  one  of  a  privileged  class  he  may 
make  a  valid  oral  will,  though  well  and  strong,  and  not  in  extremis, 
but  only  exposed  to  that  general  peril  which  attends  all  military 
expeditions.  The  term  "  expedition  "  is  not  confined  to  the  period 
of  conflict  nor  to  that  movement  of  troops  which  immediately  pre- 
cedes or  brings  on  the  shock  of  an  engagement,  and  yet  wills  made 
in  such  imminent  danger  of  death  ought  to  be  most  highly  favored ; 
but  while  encamped  in  an  enemy's  country,  surrounded  by  a  hos- 
tile population,  taking  part  in  operations  directed  against  the  foe, 
and,  as  one  would  say,  at  the  seat  of  war,  a  soldier  is  properly 
deemed  in  actual  military  service  and  capable  of  making  a  nun- 
cupative will,  although  his  own  present  and  immediate  share  in 
those  operations  may  be  at  some  quiet  and  remote  post,  or  during 
a  lull  in  hostilities.  For  all  campaigns  involve  periods  of  action 
and  inaction,  and  in  all  such  service  detachments  must  relieve  one 
another,  and  points  distant  or  near  to  the  enemy  be  well  covered ; 
and  marching  orders  may  arrive  at  any  moment.^     Courts    may 

Hubbard,  8  N.  Y.  196;  Thompson,  Ex  limit     the    soldier's    privilege,"     says 

parte,  4  Bradf.   (N.  Y.)    154.     A  pas-  Barrows,     J.,    "to     those     excursions 

senger   on    a   vessel    is    of    sourse    no  from     camps     or     quarters     in     the 

"  mariner."  Warren  v.  Harding,  2  R.  enemy's  country  which  are  designed  to 

I.  133.  bring   on   an    immediate   engagement, 

3.  See    Leathers    v.    Greenacre,    53  would   be   to   defeat   it   for   the   most 

Me.  561,  one  of  the  later  cases  where  part,  except  as  to  mere  nuncupations, 

tliis   subject   is   well  discussed.     "  To  the    proof   of    which,    resting    in   the 

455 


§    367  LAW  OF   WILLS.  [pART  III, 

well  go  a  step  farther,  and  dropping  this  word  "  expedition,"  con- 
strue "  actual  military  service  "  to  mean  the  active  exercise  of 
military  functions  at  times  of  danger,  whether  in  the  enemy's 
country  for  aggressive  war,  or  for  defence  at  home,  when  invasion, 
insurrection,  or  riot  is  to  be  put  down.*  But  on  the  other  hand, 
while  one  is  quietly  quartered  in  barracks,  at  home  or  abroad,  per- 
forming a  sort  of  routine  guard  duty,  and  engaged  in  no  active 
operations,  offensive  or  defensive,  which  threaten  death  and  move 
him  towards  a  scene  of  danger,  he  cannot  make  a  valid  nuncupa- 
tive will,  as  the  courts  have  frequently  decided ;  ^  nor  can  he  while 
at  home  on  furlough,®  or  near  home  in  the  camp  where  troops  are 
recruited  and  organized  before  they  are  sent  to  the  seat  of  war ;  '^ 
for  at  such  times  he  stands  in  no  need  of  a  privilege,  but  may  pur- 
sue the  prudent  formalities  imposed  upon  civilians.*  Conse- 
quently, under  our  broad  sense  of  the  term  "  expedition,"  a  soldier 
may  make  a  nuncupative  will  while  passing  from  the  outer  to  the 
inner  field  of  military  operations,  or  from  one  point  to  another, 
or  while  detailed  or  detained  on  the  line  of  march,  provided  he  be 

breasts  of  those  who  are  similarly  ex-  Gordon,  39  Vt.  Ill,  118;   Botsford  v. 

posed,   may   never   be  made   available  Krake,  1  Abb.  Pr.  N.  S.  112. 

to    the    soldier's    friends."      lb.    573.  5.  Drummond    v.    Parish,    3    Curt. 

And  see  Van  Deuzer  V.  Gordon,  39  Vt,  522;    White  v.   Repton,   3   Curt.   818. 

119.      The    general    danger   to   which  See   2  Curt.   341,   368.     As  to  a  will 

all  soldiers  are  exposed  in  such  a  situ-  made  on   a  tour  of  inspection,  see   1 

ation,  the  chances  of  being  suddenly  Robert.  276. 

posted  elsewhere  without  good  oppor-  6.  Smith's  Will.  6  Phil.    (Pa.)    104. 

tunity  to  arrange  one's  affairs,  not  to  7.  Van   Deuzer    v.    Gordon,    39    Vt. 

add   other   reasons    (more   forcible   in  111. 

earlier  centuries  than  ours),  sucli  as  8.  The   Roman  military   testament, 

the  inconvenience  of   procuring  writ-  whose  first  sanction  came  from  Julius 

ing   materials    in    camp    suitable    for  Caesar,  was  limited  in  like  manner  ti 

solemn     documents,     the    absence     of  soldiers   when   in   actual    service   and 

legal  advisers,  and  the  unskillfulness  while  they   lived   in  tents.     Veterans 

find     illiteracy     often    found     among  after  dismission,  soldiers  out  of  camp, 

military  comrades,  all  plead  in  favor  soldiers  not  upon   an  exp<Hlition,  but 

of  treating  a  soldier's  informal  testa-  living    in   their   own    houses   or    else- 

ment,  whether  written  out  or  dictated,  where,   were   required   to   make   their 

as  genuine,  if  only  established.  testaments  like  other  citizens.     Just. 

4.  See   language  of   Van   Deuzer   v.  Lib.  IT.  tit.  11;   53  Me.   570. 

45G 


CHAP.  IV.]  NUNCUPATIVE  OR  ORAL  WILLS.  §    367 

in  actual  service  and  pursuing  his  orders.^  (2)  The  mariner's 
privilege  of  nuncupation  lies  under  a  different  condition ;  that, 
namely,  of  '*'  being  at  sea  " ;  and  the  general  peril  here  kept  in 
view  is  of  a  different  description,  though  quite  as  real  as  the  other, 
while  for  similar  reasons  it  may  be  inconvenient  for  one  to  pre- 
pare a  testament  formal  in  all  points  as  the  statute  imposes  upon 
those  who  are  safe  at  home.  In  legal  parlance  waters  within  the 
ebb  and  flow  of  the  tide  are  considered  the  sea ;  and  hence  the  mari- 
ner may  exercise  his  right  of  nuncupation  while  the  vessel  is  on  a 
voyage,  and  lying  at  anchor  in  an  arm  of  the  sea,^  or  while  in  the 
tide-waters  of  a  harbor.^  This  seems  to  be  the  natural  limit  of 
the  rule ;  and  admiralty  law  may  guide  to  the  conclusion  in  a  case 
of  doubt.  But  the  spirit  of  this  privileged  legislation  is  some- 
times invoked  as  against  a  literal  construction  of  the  phrase  "  at 
sea  " :  and  a  naval  ofiicer  living  on  shore,  in  his  official  residence, 
has  been  refused  the  privilege  of  making  a  nuncupative  will, 
though  occasionally  visiting  his  ship  in  the  harbor;  ^  while  the  will 
of  a  seaman  living  on  board  ship,  who  went  on  shore  upon  leave  and 
there  met  with  an  accident  from  which  he  died  before  he  could 
return,  is  held  privileged ;  *  and  again  the  fact  that  a  nuncupative 
will  is  made  by  one  while  on  a  naval  expedition  and  exposed  to  the 
peril  of  death,  has  given  it  peculiar  favor,  like  that  accorded  to 
military  testaments,  and  brought  it  within  the  spirit  of  the  ex- 
ception.^ 

9.  Herbert  v.  Herbert,  Dea.  &  Sw.  made  while  the  testator  was  literally 
10;  Thome's  Goods,  29  Jur.  569.  In  "at  sea."  He  was  actually  on  shore. 
Gould  V.  Safford,  39  Vt.  498,  a  soldier  5.  Austen's  Goods,  2  Rob.  611.  Here 
fell  sick  on  the  line  of  march  and  was  the  will  allowed  was  made  while  con- 
sent to  the  hospital,  where  he  died.  ducting  an  expedition  in  Chinese  wat- 

1.  Hubbard  v.  Hubbard,  8  N.  Y.  ers.  The  will  was  made  in  a  river, 
196.  but  whether  within  tide-waters  or  not 

2.  Thompson,  Ex  parte,  4  Bradf.  was  not  shown.  But  in  Gwin's  Will, 
154;  5  Notes  Cas.  596.  Cf.  Warren  v.  1  Tuck.  (N.  Y.)  44,  the  nuncupative 
Harding,  2  R.  I.  133.  will  of  a  naval  officer  made  in  the  war 

3.  Easton  v.  Seymour,  3  Curt.  530;  on  the  Mississippi  River  near  Vicks- 
cited  2  Curt.  339.  burg,    was    refused    probate.      These 

4.  Lays'  Goods,  2  Curt.  375.  In  cases  are  in  conflict.  As  a  general 
neither  of  these   cases  was  the  will  rule,  however,  the  will  of  a  mariner 

457 


§    369  LAW  OF  WILLS.  [PAKT  KI. 

§  368.  The  Same  Subject. 

A  soldier  or  mariner  who  makes  a  nuncupative  will  which  is  in- 
valid because  he  is  not  at  the  time  in  "  actual  railitary  service,"  on 
the  one  hand,  or  "  at  sea,"  on  the  other,  may,  however,  while  situ- 
ated as  thus  required,  give  such  a  will  validity  by  words  and  con- 
duct tantamount  to  adopting  it  as  his  present  will.^ 

§  369.  Points  to  be  considered  in   Nuncupative   Wills;   distin- 
guishing Testators  Privileged  and  Unprivileged. 

It  now  remains  to  consider  the  essential  points  which  arise  in 
connection  with  nuncupative  wills.  We  shall  discuss  them  in  the 
following  order:  (1)  Whether  the  will  must  be  made  in  extremis', 
(2)  the  place  of  making  the  will ;  (3)  the  manner  of  declaring  one's 
disposition  ;  (4)  the  requisite  number  of  witnesses  to  the  will ;  (5) 
the  subsequent  reduction  of  the  will  to  writing;  (6)  strictness  of 
proof  as  to  all  material  facts;  (7)  whether  informal  writings  may 
be  upheld  as  nuncupative  wills;  (8)  repeal  or  alteration  of  a  writ- 
ten will  by  a  nuncupative  one. 

While  dealing  with  these  topics,  let  us  still  remember  that  our 
legislation,  as  based  upon  the  Statute  of  Frauds,  justifies  a  division 
between  privileged  and  unprivileged  testators ;  those  of  the  fonner 
class  being  singled  out  from  the  general  range  of  disposers  by  nun- 
cupative will,  for  liberal  treatment.  The  usual  privileged  class 
is  that  of  soldiers  and  mariners  under  the  conditions  described  in 
the  foregoing  sections ;  "^  to  which  the  California  code  adds  those 
expecting  death  from  injury  received  the  same  day.^  Wills  which 
bequeathed  estate  not  more  than  30  pounds  in  value  were  likewise 
privileged  by  the  Statute  of  Frauds;  and  various  American  codes 
still  pursue  a  like  distinction.^     But  the  privileged  class,  whether 

not   in   actual  service  during  war,   is  der  an   extreme  emergency,   who   are 

not  made  "  at  sea  "  if  made  on  a  river.  designated     in    the     codes     of     some 

See  Warren  v.  Harding.  2   R.  I.  133,  States,  ib.  note.     Their  status  is  very 

3  Curt.  522.  slightly  considered  in  the  courts.  Car- 

6.  Van  Deuzer  v.  Gordon,  39  Vt.  roll  v.  Bonham,  42  N.  J.  Eq.  625,  9 
]n.  A.  371. 

7.  .S'»/>ra,  §§    :W}-:mf^.  9.  See  language  of  Stat.  29  Car.  II. 

8.  Hupra,  §  305.    And  >ec  others  un-  §  19,  wliich  sets  forth  its  restrictions 

458 


CHAP.  IV.]  IS'UNCUPATIVE   OR  ORAL  WILLS.  §    370 

composed  of  soldiers  and  mariners,  or  of  the  testators  of  petty  es- 
tates, as  the  case  may  be,  is  now,  by  the  policy  of  modem  England 
and  most  of  the  United  States,  the  only  class  capable  of  disposing 
by  nuncupation  at  all;  and  this,  again,  we  must  keep  steadily  in 
view,  while  investigating  the  subject. 

§  370.  Whether  the  Testament  must  be  made  in  Extremis. 

First,  then,  to  inquire  whether  the  will  must  be  made  in  extre- 
mis. That  this  is  not  essential  in  the  case  of  the  privileged  sol- 
dier we  have  already  observed,^  and  the  same  holds  probably  true 
of  the  privileged  mariner ;  for  the  one  being  in  ''  actual  military 
service  "  and  the  other  "  at  sea,"  a  general  exposure  to  sudden 
death  supplies  sufficient  peril  upon  which  legislation  founded  its 
-exception.  As  to  the  privileged  disposer  of  a  petty  estate,^  a  nice 
question  may  arise ;  namely,  whether  by  the  law  of  England,  prior 
to  and  independently  of  the  Statute  of  Frauds,  all  such  nuncupa- 
tive wills  must  be  made  an  extremis  in  order  to  be  valid.^  But, 
aside  from  such  exceptions,  the  modem  rule  as  fairly  settled  is 
this :  that  a  nuncupative  will  is  not  good  unless  it  be  made  when  the 
testator  is  in  extremis.  "  Last  sickness  "  is  the  expression  used  in 
the  Statute  of  Frauds ;  and  the  same  words  are  transplanted  in 
American  codes;  and  by  these  words  should  be  understood  one's 
last  extremity.* 

merely    with    reference    to    wills    be-  Jarm.  Wills,  755,  Randolph's  Ameri- 

queathing  more  than  30  lbs.;  leaving  can  note. 

only    the    general    restraints    of    the  1.  Supra,  §  367. 

older  common   law  to   operate   as   to  2.    Such   as   the   testator   under   29 

wills    of    less    value.      Supra,    §    363.  Car.  II.  §  19,  who  disposed  of  an  es- 

Some    American   codes    are   similarly  tate  not  exceeding  30  pounds,  and  was 

expressed,  requiring  nuncupative  wills  excepted   from  the  express   restraints 

of  property  beyond  a  stated   amount  imposed  by  that  act  in  consequence. 

to   be  .prepared   with   particular   for-  3.  Of.    the    different    opinions    ex- 

malities;    while    others,    on    the    con-  pressed     in   Prince    v.     Hazelton,     20 

Irary,    simply    prohibit    all   nuncupa-  Johns.  503,  where  the  history  of  nun- 

tive  wills  of  property  beyond  a  fixed  cupative   wills    is   traced   down    from 

value.     See  supra,  §  365    (usually  of  the  earliest  times. 

personal,   but   not  real   property)  ;    3  4.  Prince    v.    Hazleton,    20     Johns. 

459 


§    S7l  I.AW  OF  WILLS.  [PAUT  III» 

§  371.  The  Same  Subject. 

But  there  appears  a  discrepancy  in  the  decided  cases  concerning^ 
the  pressure  of  that  extremity  which  shall  justify  an  unprivileged 
nuncupation.  The  long  train  of  restrictions  imposed  by  the  act  of 
29  Car.  II.  evidently  discouraged  testators  from  that  form  of  be- 
quest; for  Blackstone  found  it  hardly  ever  heard  of  by  his  day, 
"  but  in  the  only  instance  where  favor  ought  to  be  shown  to  it, 
when  the  testator  is  surprised  by  sudden  or  violent  sickness  " ;  ^ 
nor  do  the  English  reports  furnish  a  single  valuable  comment  upon 
a  point  which,  as  legislation  now  stands  in  that  country,  can  never 
arise  again.^  In  this  country,  however,  the  question  of  extremity 
has  been  discussed  in  several  cases.  As  Chancellor  Kent  held,  and 
the  court  decided  in  Prince  v.  Hazelton,  the  extremity  or  last  sick- 
ness must  be  such  that  the  party  then  speaking  is  overtaken  by  so 
sudden  and  violent  a  sickness,  or  at  least  utters  his  wishes  so 
shortly  before  death,  that  there  was  afforded  thereafter  no  con- 
venient time  or  opportunity  to  have  reduced  his  words  to  writing 
and  executed  a  formal  will.''     It  would  follow  that  if  the  testator 

503;  Haus  v.  Palmer,  21  Penn.  St.  mony  is  preserved.  Freeman  v.  Free- 
296;  Sadler  v.  Sadler,  60  Miss.  251;  man,  1  Oas.  temp.  Lee,  343.  See  cir- 
O'Neill  V.  O'Neill,  33  Md.  569.  But  cumstances  in  Jackson  v.  Bennett,  3 
cf.  Johnson  v.  Glasscock,  2  Ala.  239.  Phillim.  90,  which  case,  however,  de- 
See  §  361.  cides  nothing  in  point. 

5.  2  Bl.  Com.  501.  In  stating  the  7.  Prince  v.  Hazelton,  20  Johns, 
essentials  of  a  nuncupative  will,  this  502.  Tliis  view  is  adopted  in  Penn- 
writer  states  further:  "To  prevent  sj'lvania.  Yarnall's  Will.  4  Rawle, 
impositions  from  strangers,  it  must  46;  Haus  v.  Palmer,  21  Penn.  St.  296. 
be  in  his  last  sickness;  for  if  he  re-  And  in  Maryland.  O'Neill  v.  O'Neill, 
covers,  he  may  alter  his  dispositions,  33  Md.  569.  In  O'Neill  v.  O'Neill,  the 
and  has  time  to  make  a  written  will."  oral  disposition  alleged  was  made  on 
lb.  the   day   immediately  before   the   tes- 

6.  One  instance  is  reported  where  a  tator's  death.  But  the  testator  had 
nuncupative  will  was  established  in  been  an  invalid  for  fifteen  years,  and 
17.j3  under  the  Statute  of  Frauds.  A  had  been  for  eiglit  months  previous  to 
wagoner  was  injured  so  badly  that  he  liis  death  confined  to  his  house,  gradu- 
died  the  next  day.  He  made  his  oral  ally  yielding  to  consumption;  his  phy- 
will  while  lying  disabled  and  in  ex-  sician  had  admonished  him  that  re- 
tremis.  A  simple  decision  by  the  covery  was  hopeless;  he  lived  in  a 
court   upon   the  facts  given   in  testi-  populous  city  and  with  ample  oppor- 

460 


CHAP,  IV.]  NUNCUPATIVE   OR  ORAL    WILLvS.  §    371 

recover,  even  when  he  has  made  a  nuncupative  will  with  due  for- 
mality, it  becomes  of  no  force ;  *  and  even  though  a  lingering  sick- 
ness proved  his  last,  yet  if  his  mental  and  physical  condition  af- 
forded an  ample  opportunity  and  inducement  to  prepare  and  exe- 
cute a  written  will,  after  his  nuncupation  occurred,  the  spoken 
words  could  not  operate  as  those  of  a  "  last  sickness."  This  justifies 
the  policy  of  the  Statute  of  Frauds,  which,  by  the  better  opinion, 
meant  to  deal  strictly  with  all  non-privileged  cases,  and  only  toler- 
ated these  nuncupative  wills  under  the  stress  of  a  supposed  neces- 
sity. Though  the  lingering  disease  should  prove  finally  fatal,  it 
must  come  to  the  last  stage  of  extremity,  if  not  to  the  last  day  or 
hour,  in  order  to  be  a  ''  last  sickness  "  within  the  statute ;  and  even 
here  nuncupation  may  be  prejudiced  by  the  neglect  to  prepare  in 
good  season  a  written  will  in  view  of  certain  death. 

A  more  liberal  rule  is  announced  by  the  supreme  court  of  Ala- 
bama: namely,  that  if  the  words  are  spoken  in  the  sickness  of 
which  one  dies,  and  under  a  sense  of  approaching  death,  it  may 
suffice,  even  though  the  party  lived  long  enough  after  the  nuncupa- 
tion to  afford  a  fair  opportunity  for  reducing  his  desires  to  the 
more  permanent  form  of  a  written  and  executed  will.®  But  such 
latitude  is  dangerous ;  and  while  the  circumstances  in  every  such 
case  deserve  a  fair  consideration,  the  preferable  rule  is  the  for- 
mer.-^ And  accordingly  where  the  decedent  lived  several  days 
after  making  a  verbal  will,  conscious  and  possessing   the   capacity 

tunity  to  prepare  a  written  will;  and  sumed  a  serious  character  about  four- 

for  a  day  at  least  after  the  nuncupa-  teen  days  before  he  died.     About  ten 

tion  he  lived,  retaining  tlie  full  pos-  days  before  he  died  the  will  was  made, 

session  of   his  senses  to  the  hour  of  The  testator,   it   was  conceded,  knew 

his  death.     The  nuncupative  will  was  how  to  write,   and  there  was   am])le 

accordingly     disallowed.       See,     also,  opportunity  to  execute  a  written  will 

where  a  paper  outlining  instructions  after  this  nuncupation.    The  witnesses 

was  prepared  for  the  dying  man's  sig-  reduced    his   wishes    to   writing    soon 

nature  and  he   refused  witliout  good  after  he  died. 

reason  to  aflfbc  his  name.     Munhall's  1.  See   Sadler   v.    Sadler,    60   Miss. 

Estate,  83  A.  66,  234  Penn.  169.  251,  which  intimates  that  the  concrete 

8.  Cases,  supra.  facts  of  each  case  should  be  weighed, 

9.  Johnson  v.  Glasscock,  2  Ala.  239.  but  announces  no  positive  opinion. 
In  this  case  the  testator's  disease  as- 

461 


§    373  LAW  OF  WILLS.  [PAET  III. 

and  having  fair  opportunity  to  execute  a  written  one,  the  nuncupa- 
tion was  treated  as  of  no  effect;  for  wills  of  that  description  (ex- 
cept as  to  the  soldiers  and  mariners,  etc.,  already  mentioned)  could 
be  justified  only  by  sheer  necessity.^ 

§  372.  The  Place  of  Making  the  Will. 

Second,  as  to  the  place  of  making  the  nuncupative  will.  The 
common  law  makes  no  restriction  in  this  respect  for  one  kind  of 
testament  more  than  another.  But  under  the  Statute  of  Frauds 
nuncupative  wills  of  the  non-privileged  sort  can  only  be  made  in 
one's  dwelling,  or  place  of  residence,  unless  the  testator  is  sur- 
prised or  taken  sick  while  absent  and  dies  before  his  return.^  A 
local  code  at  the  present  day  must  determine  whether  any  such  re- 
straints still  operate.  From  this  limitation  the  wills  of  soldiers 
and  mariners  were  of  course  exempt,  not  without  some  such  re- 
straint of  their  own  from  the  nature  of  the  case ;  *  nor  were  wills 
of  petty  amount  made  subject  to  the  rule  originally.^ 

§  373.  The  Manner  of  Declaring  One's  Disposition. 

Third,  as  to  the  manner  of  declaring  one's  disposition,  or  what 
we  may  term  the  nuncupation.  The  Statute  of  Frauds  expressly 
enacts,  that  the  testator  shall,  at  the  time  of  pronouncing  his  will, 
bid  the  persons  present  or  some  of  them  bear  witness  that  such  was 

2.  Carroll  v.  Bonham,  42  N.  J.  Eq.  Penn.  549;  47  Wash.  253,  91  P.  967; 

625,  9  A.  371.     Here  the  decedent,  a  Godfrey  v.   Smith,   73   Neb.    756,   103 

woman,  appears  to  have  had  an   im-  N.  W.  450;  Baird  v.  Baird,  79  P.  1(53, 

pression  that  her  verbal   will,   when-  70  Kan.  564. 

ever  made,  would  be  good.     See,  also,  3.  Act   29   Car.   II.   §   19;   supra,   § 

Scaife  v.  Emmons,  84  Ga.  619,  10  S.  363.     See  Marks  v.  Bryant,  4  Hen.  & 

E.  1097,  20  Am.  St.  Rep.  383.    NegU  ct  M.  91 ;  Nowlin  v.  Scott,  10  Gratt.  64. 

to  make  a  written  will,  upon  the  phy-  In  the  Virginia  statute  "  habitation  " 

sician's  warning,  until  it  became  too  is    used     (in    the    sense,    however,    of 

late,    does    not    exclude   the    right   to  "dwelling-house"),     and     there     are 

make  one  by  nuncupation.     187  Penn.  other  verbal  variations'  from   the  ex- 

St.   82,   67   Am.   St.   Rep.   569,   40   A.  pre,';sion  of  the  Statute  of  Frauds. 

980;   96  Ga.  467,  23  S.  E.  387.     And  4.  f^nprn.  §  367. 

see    Rutt's    Estate,    50    A.    171,    200  5.  Act  29  Car.  II.  §  19,  §  365. 

4G2 


CHAP.  IV.]  NUNCUPATIVE   OE  ORAL  WILLS.  §    373 

his  will,  or  to  that  effect.''  This  is  technically  called  the  rogatio 
testium;  and  the  statute  requirement,  whose  policy  plainly  is  to 
establish  testamentary  intent  so  clearly  that  bystanders  may  not 
frame  a  will  out  of  words  loosely  spoken  by  the  dying  person,  has 
been  strictly  constnied.  Thus,  where  a  mother  in  her  last  sick- 
ness called  to  her  bedside  several  of  her  children  and  the  daughter 
of  the  person  with  whom  she  lodged,  and  declared  how  she  wished 
her  effects  disposed  of  and  her  family  brought  up  after  her  death, 
the  declaration  was  held  insufficient,  for  want  of  the  solemn  rogatio 
testium;  she  ought  to  have  bade  those  present  bear  witness  that 
this  was  her  will.^  A  dying  person  may  give  many  farewell  mes- 
sages, may  express  many  farewell  wishes,  often  changing  his  mind, 
adding  or  substituting  as  new  ideas  occur;  but  to  constitute  the 
oral  will,  he  must  have  concluded  its  substance  in  his  own  mind, 
and,  gathering  up  his  faculties,  he  must  set  forth  clearly  before  the 
witnesses  what  shall  be  this  disposition  once  and  for  all,  and  so 
give  point  to  the  transaction  as  an  ideal  execution  of  his  will  on 
the  spot,  including  a  request  for  their  ideal  attestation  thereof. 

Independently  of  such  legislation,  and  prior  to  the  statute  of 
Charles  IL,  very  nearly  the  same  rogatio  testium  appears  to  have 
been  indispensable  at  our  law ;  for  though  no  precise  form  of  words 
was  prescribed,  the  alleged  nuncupation  must  have  disclosed  a 
present  consistent  intention  that  the  very  words  uttered  should 
constitute  one's  will,  and  that  the  witnesses  should  understand  the 
dying  person  in  that  sense  and  mark  his  words  accordingly.  This 
nuncupation  on  his  part  manifested  a  testamentary  intent,  whether 
one  used  the  word   "  will '"   or  "  testament,"   or  not.^     In    this 

6.  lb.  any  one  present  to  note  her  language. 

7.  Bennett  v.  Jackson,  2  Phillim.  Broach  v.  Sing,  57  M'iss.  115.  And 
190.  And  see  Cas.  temp.  Lee,  588;  see  Bundrick  v.  Haygood,  106  N.  C. 
Hebden's  Will,  20  N.  J.  Eq.  473;  468,  11  S.  E.  423;  Godfrey  v.  Smith, 
Dockrum  v.  Robinson,  26  N.  H.  372.  73  Neb.  756,  103  N.  W.  450;  Baird  v. 
Nor  can  tbe  statement  of  a  sick  per-  Baird,  79  P.  163,  70  Kan.  564;  Scales 
son  before  those  in  the  room,  that  she  v.  Thornton.  44  S.  E.  857,  118  Ga.  93; 
■wants  A  to  have  her  property,  be  pro-  41  S.  E.  621,  115  Ga.  286. 

bated  as  her  nuncupative  will,  if  she  8.  Swinburne  says  that  the  testator 

iieither  mentions  a  will  nor  calls  on      "doth   declare   his   will"    (his   whole 

463 


§  374 


LAW  OF  WILLS. 


[PAKT  III. 


aspect,  then,  our  privileged  classes  of  testators  appear  to  have  no 
substantial  advantage  over  others ;  except  it  be  in  dispensing  with 
the  more  formal  declaration  of  the  statute  where  other  circum- 
stances sufficiently  establish  that  nuncupation  and  a  last  will  were 
in  fact  intended ;  ^  or  perhaps  where  the  will  is  founded  upon  let- 
ters, an  unperfected  instniment  in  writing,  or  other  proof  not 
purely  oral.^  But  military  testaments  were  always  treated  with 
singular  indulgence;  and  the  same  indulgence  may  possibly  ex- 
tend to  mariners  at  sea.^ 

§  374.  The  Same  Subject. 

As  to  wills,  therefore,  which  derive  no  privilege  beyond  that 
accorded  to  a  nuncupation  for  establishing  them,  it  should  appear 
that  the  deceased,  at  the  time  of  speaking  the  alleged  words,  had 
the  present  testamentary  purpose  and  meant  that  those  words 
should  constitute  the  final  expression  of  that  purpose.^    He  should 


mind,  etc. )  "  before  a  suflBcient  num- 
ber of  witnesses."  Swinb.  pt.  4,  §  29, 
pt.  1,  §  12.  Perkins  says  that  the  tes- 
tator prays  those  about  him  to  bear 
witness  of  liis  last  will  and  declares 
by  word  what  is  his  will.  Perk.  § 
476.  See  those  early  authors  cited, 
supra,  §  361. 

9.  It  appears,  however,  that  at  com- 
mon law  a  nuncupative  will  may  be 
made  not  only  by  the  proper  motion 
of  the  testator,  but  also  at  the  inter- 
rogation of  another.  Swinb.  pt.  1,  § 
12,  ])!.  (J;    1  Urns.  Exrs.  122. 

1.  Of  such  wills  adduced  in  probate 
as  nuncupative,  etc.,  we  shall  speak 
presently  in  this  chapter. 

2  A  military  testament  may  be 
good,  though  made  up  of  declarations 
and  requests  not  strictly  in  the  form 
of  a  single  nuncupation  with  a  rogatio 
testium.  See  Gould  v.  Safford,  39  Vt. 
498.  The  civil  law  was  very  indul- 
gent  in   rcsjxict   to   wilLs   of   soldiers, 


and  if  a  soldier  wrote  anything  in 
bloody  letters  on  his  shield,  or  in  the 
dust  of  the  field  with  his  sword,  it 
was  held  a  good  military  testament. 
1  Bl.  Com.  417.  No  particular  for- 
malities were  necessary  to  the  vali- 
dity of  such  a  disposition.  Accord- 
ing to  Swinburne,  only  those  solemni- 
ties were  necessary  which  are  juris 
gentium;  no  precise  form  of  words 
was  required,  and  it  was  not  material 
whether  the  testator  spoke  properly 
or  improperly  if  his  mea-iing  ap- 
peared ;  and  soldiers  are  clearly  ac- 
quitted from  observing  the  solemni- 
ties of  the  civil  law  in  the  making  of 
their  testaments.  Swinb.  pt.  1,  §  14, 
pt.  4,  §  26. 

3.  Verbal  instructions  and  direc 
tions  for  drawing  up  a  written  will  do 
not  constitute  a  nuncupative  will  al- 
though spoken  in  presence  of  the 
proper  number  of  witnesses.  Do^kum 
v.  llobinson,  26  N.  H.  372.    And  see  3 


464 


CHAP.  IV.]  NUIVCUPATIVE   OR  ORAL   WILLS.  §    375 

have  a  sufficient  number  of  witnesses  present  together  and  call 
upon  them  at  the  same  time  to  bear  witneS'S  to  his  will  as  he  pro- 
nounces it,  or  use  language  equivalent ;  *  nor  is  it  enough  that  he 
declares  his  will  to  these  witnesses  separately  and  apart  from  one 
another.^  Nor  should  the  will  be  constituted  by  words  drawn  out 
from  the  dying  man  by  some  interested  party  present ;  but  the  tes- 
tament should  appear  to  come  freely  and  spontaneously  from  the 
•dying  man's  own  breast.® 

§  375.  The  requisite  Number  of  Witnesses  to  the  Will. 

Fourth,  as  to  the  number  of  witnesses  who  are  required  to  prove 
the  will.  The  Statute  of  Frauds  declared  that  no  nuncupative 
will  should  be  good  that  was  not  "  proved  by  the  oath  of  three  wit- 
nesses " ;  and  so  strictly  has  this  provision  been  construed,  that 
where  one  of  the  three  witnesses  present  at  a  certain  nuncupation 
died  before  he  could  make  proof,  the  will  was  held  to  be  invalid.^ 
So  should  these  three  witnesses  be  in  substantial  accord  as  to  what 
the  will  of  the  deceased  really  was.^  Among  American  States 
which  still  permit  nuncupative  wills  to  be  made  by  non-privileged 
persons,  some  require  three  witnesses ;  but  commonly  two  witnesses 

Leigh,    140;    Reese   v.    Hawthorn,    10  ter,  5  Jones  L.  95.     The  rogatio  tes- 

Gratt.   548;    Hebden's  Will,   20  N.  J.  tium    is    indispensable.      Portman    v. 

Eq.  473.  Hunter,  6  B.  Mon.  538,  construes  the 

4.  Hebden's  Will,  supra;  1  Add.  Kentucky  statute  less  strictly,  but, 
389;  Brown  v.  Brown,  2  Murph.  350;  as  precedents  go,  contrary  to  rule. 
Ridley  v.  Coleman,  1  Sneed,  616;  Ar-  And  see  Grossman's  Estate,  175  HI. 
nett  V.  Arnett,  27  III.  247.  The  dying  425,  67  Am.  St.  Rep.  219,  51  N.  E. 
person  need  not  call  these  witnesses  750;  Wiley's  Estate,  187  Penn.  St. 
by  name.  109  N.  C.  114.  See  further,  82,  67  Am.  St.  Rep.  569,  40  A.  980. 
Dockum  V.  Robinson,  supra;  75  Miss.  6.  Cf.  Brown  v.  Brown,  2  Murph. 
294,  22  So.  803;  Knox  v.  Richards,  350;  Parsons  v.  Parsons,  2  Greenl. 
35  S.  E.  295,  110  Ga.  5;  50  A.  171,  298.  The  peculiarities  of  the  Loui- 
200  Penn.  549.  siana  code  with  reference  to  nuncupa- 

5.  Prince  v.  Hazleton,  20  Johns,  tive  wills  have  already  been  noted. 
505;  Weeden  v.  Bartlett,  6  Munf.  123;  Supra,  §  365. 

Tally  V.  Butterworth.   10  Yerg    501;  7.    1    Eq.    Cas.   Abr.    404;    1    Wms. 

Offut  V.  OfTut,  3  B.  Mon.  162,  38  Am.  E.xrs.  121. 

Dec.    183;    Yarnall's    Will,    4    Rawle,  8.  Mitchell  v.  Vickers,  20  Tex.  377; 

46,  26  Am.  Dec.  115;   Wester  v.  Wes-  Bolles  v.  Harris,  34  Ohio  St.  38. 

30  465 


376 


LAW  OF  WILLS. 


[part  III. 


may  suffice.*     A  statement  before  less  than  the  requisite  number  of 
witnesses  does  not  constitute  a  valid  nuncupation.^ 

Nuncupative  wills  of  the  privileged  kind — those  of  soldiers,  and 
mariners,  and  the  wills  of  petty  amount — the  Statute  of  Frauds 
leaves  without  any  definite  number  of  witnesses  to  establish  them. 
■Such  wills,  it  would  appear,  may,  aside  from  legislation  to  the 
contrary,  be  proved  in  a  court  controlled  by  common-law  rules, 
upon  the  testimony  of  a  single  unimpeached,  competent  witness.^ 
But  no  one  is  a  suitable  witness  for  a  nuncupative  will  unless  com- 
petent as  in  other  testamentary  causes.^ 


§  376.  Subsequent  Reduction  of  the  Nuncupative  Will  to  Writ- 
ing. 

Fifth,  as  to  the  subsequent  reduction  of  the  will  to  writing.  The 
Statute  of  Frauds  required  the  nuncupative  words  to  be  put  into 
writing  within  six  days  after  they  were  spoken;  as  otherwise  the 
alleged  will  could  not  be  proved  after  six  months.*     Similar  legis- 


9.  See  1  Jarm.  98,  Bigelow's  note; 
3  Jarm.  755,  Randolph's  Am.  note; 
Stimson's  Am.  Stat.  Law,  §  2703. 
Maine,  New  Hampshire,  New  Jersey, 
Maryland,  Texas,  and  Wisconsin,  are 
among  the  States  whose  codes  re- 
quire three  witnesses.  In  most  of  our 
northwestern  States  and  those  on  the 
Pacific  slope,  besides  Pennsylvania, 
Kentucky,  Tennessee  an,d  ilississippi, 
the  code  provides  for  two  witnesses 
instead.  In  Ohio  the  rule  of  com- 
petency and  disinterestedness  is  more 
strongly  insisted  upon,  under  the  stat- 
ute, than  in  the  case  of  written  wills. 
Vrooman  v.  Powers,  41  Ohio  St.  191; 
supra,  §§  353-358.  As  to  the  Loui- 
8ana  code,  see  Richard  v.  Richard,  57 
So.  286,  129  La.  007  (dictated  or  writ- 
ten by  a  notary  in  presence  of  wit- 
nesses who  understood  the  language, 
etc.). 


1.  Bundrick  v.  Haygood,  106  N.  C. 
468,  11  S.  E.  433;  41  Ohio  St.  191;  84 
Ga.  619,  20  Am.  St.  Rep.  383,  10  S. 
E.  1097. 

2.  Gk)uld  V.  Safford,  39  Vt.  498, 
where  this  rule  was  applied  in  favor 
of  the  nuncupative  will  of  a  soldier 
in  actual  service.  Under  the  rules  of 
the  civil  law  a  controverted  faet  had 
to  be  established  by  the  testimony  of 
at  least  two  witnesses;  but  under  the 
rules  of  the  common  law,  the  testi- 
mony of  a  single  witness,  where  there 
is  no  ground  for  suspecting  either  his 
ability  or  his  integrity,  is  a  sufficient 
legal  ground  for  belief,  even  in  crimi- 
nal cases.     lb.  505. 

3.  Supra,  §  350;  Haus  v.  Palmer, 
21  Penn.  St.  296.  See  Young's  Will, 
123  N.  C.  358,  31  S.  E.  626. 

4.  Stat.  29  Car.  II.  §  19.  By  §  21, 
as  we  have  seen,  no  nuncupative  will 


466 


CHAP.  IV.]  NUNCUPATIVE  OR  ORAL  WILLS.  §    377 

lation  (with  slight  variation  as  to  the  number  of  days)  may  be 
found  in  the  United  States ;  and  where  the  words  reduced  to  writ- 
ing are  not  substantially  the  same  as  spoken,  the  will  may  be  pro- 
nounced invalid.^  This  safeguard  against  fraud  and  failure  of 
recollection  applies  in  strictness,  however,  only  to  the  non-privi- 
leged wills;  and  for  those  of  the  privileged  kind,  we  may  assume 
that  the  usual  common-law  rules  of  evidence  are  applicable  to  prove 
or  disprove  them.^ 

§  377.  Strictness  of  Proof  as  to  all  Material  Facts. 

Sixth,  as  to  strictness  in  establishing  all  the  facts  material  to 
the  probate.  Nuncupative  wills,  being  as  a  rule  no  favorites  of 
the  court,  demand  strictness  of  proof  on  all  essential  points, 
whether  for  the  purpose  of  showing  that  the  statute  restraints  have 
been  fully  complied  with,  or  to  establish  facts  fundamentally  in- 
dispensable to  'the  probate,  independently  of  statute  restraints. 
For,  with  or  without  a  Statute  of  Frauds,  evidence  more  strict  and 
stringent  than  in  the  case  of  a  written  will  should  be  furnished  in 
every  particular.  "  This,"  observes  Williams,  "  is  requisite  in 
consideration  of  the  facilities  with  which  frauds  in  setting  up  nun- 
cupative wills  are  obviously  attended;  facilities  which  absolutely 
require  to  be  counteracted  by  courts  insisting  on  the  strictest  proof 
as  to  the  facts  of  such  alleged  wills.  Hence  the  testamentary  ca- 
pacity of  the  deceased,  and  the  animus  testandi  at  the  time  of  the 
alleged  nuncupation  must  appear,  in  the  case  of  a  nuncupative 
will,  by  the  clearest  and  most  indisputable  testimony."'^ 

The  general  impolicy  of  nuncupative  wills  is  not,  however,  as- 

could  be  admitted  to  probate  without  tor  should  be  put  to  inconvenience  or 

at  least  fourteen  days'  delay  from  the  surprised."     2  Bl.  Com.  501. 

testator's  death  and  a  citation  of  the  5.  Bolles  v.  Harris,  34  Ohio  St.  38. 

wi4ow  and  next  of  kin.    "  It  [the  nun-  And  see  Mitchell  v.  Vickers,  20  Tex. 

cupative  will]  must  not  be  proved  at  377;   Haygood's  Will,  101  N.  C.   574, 

too   long   a   distance   from  the  testa-  8  S.  E.  222. 

tor's  death,  lest  the  words  should  es-  6.  Gould  v.  Safford,  39  Vt.  505. 

cape   the   memory   of    the   witnesses;  7.  Wms.  Exrs.  121,  122;  1  Add.  389, 

nor     yet   too     hastily,     and     without  390.      This    consists    with    the    cases 

notice,  le&t  the  family  of  the  testa-  noted  in  the  preceding  sections.     See 

467 


§  378 


LAW  OF  WILLS. 


[PAKT  in. 


serted  as  strenuausly  in  some  States  as  in  others;  while  some  of 
the  privileged  classes,  soldiers  in  actual  service  more  particularly, 
appear  to  be  regarded  with  positive  favor  and  indulgence.* 

§  378.  Informal  Writings,  whether  upheld  as  Nuncupative  Wills. 

Seventh,  as  to  whether  informal  writings  may  ever  be  upheld  is 
nuncupative  wills.  We  have  seen  that  until  such  enactments  as 
the  Statute  of  Victoria  came  in  force,  holograph  letters,  unattested 
writings,  and  even  mere,  memoranda,  were  allowed  a  very  loose 
operation  as  wills  of  personal  property.  Thus  was  it,  in  fact,  long 
after  the  Statute  of  Frauds  restrained  nuncupative  wills.*  In 
various  American  States,  where  these  unattested  writings  have 
been  laid  under  the  ban,  courts  show  sometimes  a  disposition  to 
sustain  unperfected  wills  in  writing  as  nuncupative  wills;  as 
where,  for  instance,  the  completion  of  the  will  was  prevented  by 
act  of  God.^  But  this  is  a  straining  of  the  statute ;  for  a  nuncupa- 
tive will,  as  its  literal  meaning  imports,  is  simply  a  verbal  declara- 


also  Smith  v.  Thurman,  2  Heisk.  110; 
Bolles  V.  Harris,  34  Ohio  St.  38; 
Mitchell  V.  Vickers,  20  Tex.  377;  84 
Ga.  619,  20  Am.  St.  Rep.  383,  10  S. 
E.  1097;  41  Ohio  St.  191;  106  N.  C. 
468,  11  S.  E.  423.  For  the  Louisiana 
practice,  see  supra,  §  365.  Verbal 
instructions  for  a  written  will  which 
there  was  no  time  to  make  cannot  be 
construed  into  a  nuncupative  will.  75 
Miss.  294,  §  374.  See  also  Bingham 
V.  Isham,  81  N.  E.  690,  227  111.  634; 
Godfrey  v.  Smith,  73  Neb.  756,  103  N. 
W.  450. 

8.  A  soldier's  oral  will  is  entitled 
to  probate,  notwitlistanding  the  con- 

,  struction  of  a  doubtful  phrase  nuiy 
be  needful.  Scott's  Goods,  (1903)  P. 
243. 

9.  See  supra,  §  253.  In  England 
until  the  Statute  of  Victoria,  which 
abolisbed  nuncupative  wills  of  non- 
privileged   persons,   on  the  one   hand. 


and  written  wills  of  personal  prop- 
erty informally  attested,  on  the  other, 
an  actual  testamentary  disposition, 
which  had  been  committed  to  writing 
by  authority  of  the  testator,  with  in- 
tention to  execute,  but  was  left  un- 
signed or  unattested  by  accident  or 
the  act  of  God,  might  be  admitted  to 
probate:  but  the  probate  was  not  that 
of  a  nuncupative  will,  nor  did  any 
of  the  restraints  upon  nuncupative 
wills  obstruct  them.  Huntingdon  v. 
Huntingdon,  2  Phillim.  213;  Strish  v. 
Pelham,  2  Vern.  647.  So  has  it  been 
in  American  States  upon  a  like 
theory,  prior  to  the  passage  of  local 
statutes  which  make  a  formal  execu- 
tion and  attestation  necessary.  Pub- 
lic Administrator  v.  Watts.  1  Paige, 
373;   4   Wend.  168. 

1.  OfTut  V.   Offut,   3   B.   Mon.   162; 
Boofter  v.  Rogers,  9  Gill,  44 ;  §  374. 


4GS 


CHAP.  IV.]  NUNCTJPATIVE  OR  ORAL  WILI^.  §    379 

tion  made  in  presence  of  witnesses  called  upon  to  notice  it,  and 
not  reduced  to  writing  by  the  testator's  direction ;  the  verbal  decla- 
ration being  intended  as  his  will,  and  not  as  something  different  or 
preliminary  to  it;  and  thus  do  the  more  consistent  authorities 
rule  it.^ 

But  privileged  wills,  and  especially  military  testaments,  may 
stand  on  a  more  favored  footing  in  this  respect;  not  because  the 
will  which  is  written  down  by  the  testator  instead  of  being  uttered 
is  strictly  of  the  nuncupative  kind,  but  because  the  civil  law  dis- 
pensed freely  with  formalities  in  such  testaments,  and  the  common 
law  is  supposed  to  intend  the  same.  Defective  instruments  in 
writing,  letters  in  his  own  hand,  declarations  which  some  comrade 
is  to  write  out  and  transmit  by  mail,  and  the  like,  have  accordingly 
been  upheld  as  suitable  soldier's  testaments,  within  the  exception 
of  our  statutes  relating  to  nuncupative  wills,  though  no  rogatio 
testium  took  place  at  all.' 

§  379.  Repeal  or  Alteration  of  a  Written  Will  by  a  Nuncupative 
One. 

Eighth,  as  to  the  repeal  or  alteration  of  a  written  will  by  a  nun- 

2.  Hebden's  Will,  20  N.  J.  Eq.  473 ;  ford  v.  Krake.  1  Abb.  Pr.  N.  S.  112. 
Dockrum  v.  Robinson,  26  N.  H.  372;  We  should  observe  the  specific  Ian- 
Porter's  Appeal,  10  Penn.  St.  254.  guage  of  such  enactments:  not  that 
Nor  can  a  will  executed  as  a  written  soldiers  in  actual  service  and  marin- 
will,  and  defective  in  respect  of  exe-  ers  at  sea  may  simply  make  a  nun- 
cution,  be  set  up  as  a  nuncupative  cupative  will,  but  that  they  may  dis- 
testament.  Rees  v.  Hawthorne,  10  pose,  etc.,  in  the  same  manner  as  be- 
Cratt.  548.  A  signed  writing  is  not  a  fore  the  act;  which  expression  may 
nuncupative  will.  Stamper  v.  Hooks,  well  embrace  all  the  means  of  dispos- 
22  G«o.  603.  68  Am.  Dec.  511.  Nor  ing  of  personal  property  which  the 
can  a  document  drawn  as  a  regular  common  law  sanctioned.  As  to  wills 
will,  but  not  duly  executed  because  of  petty  amount,  however,  the  local 
death  suddenly  intervened,  be  pro-  legislation,  properly  construed,  may 
bated  as  a  nuncupative  will  Male's  usually  be  found  to  permit  of  them 
Will,  49  N.  J.  Eq.  266.  only   on  the  strict  footing  of   "  nun- 

3.  Gould  v.  Safford,  39  Vt.  498;  cupative  wills,"  and  not  by  way  of 
Van  Deuzer  v.  Gordon,  ib.  Ill;  Leath-  letter  or  writing  informally  executed, 
era  v,   Greenacre,   53  Me.   561;    Bots- 

4G9 


§  379 


LAW  OF  WILLS. 


[part  in. 


cupative  one.  This,  we  have  seen,  is  expressly  forbidden  by  the 
Statute  of  Frauds.*  And  under  American  codes,  the  revocation, 
total  or  partial,  of  a  duly  executed  written  will  by  an  oral  or  nun- 
cupative one  is  likewise  prohibited.^ 


4.  Stat.  29  Car.  II.  §  22.  But  it 
has  been  held  that  thig  section  does 
not  prevent  a  nuncupative  provision 
(made  according  to  the  statute  re- 
strictions)   of    a    lapsed    legacy.      T. 


Raym.   3.34;    Com.   Dig.   Devise   C;    1 
Wms.  Exrs.  122.     See  §  363,  supra. 

5.  McCune  v.  House,  8  Ohio,  144, 
31  Am.  Doc.  43S;  Brook  v.  Chappell, 
34  Wis.  405.  See  Part  IV.  post,  as 
to  Revocation,  etc. 


470 


PART  IV. 

REVOCATION,  ALTERATION  AND  REPUBLICATION  OF  WILLS. 


CHAPTER  I. 

REVOCATION  OF  WILLS. 

§  380.  Various  Modes  of  Revocation ;  Modern  Legislation  affects 
the  Subject . 

There  are  various  modes  by  which  a  will  once  executed  may  be 
revoked  during  'the  testator's  lifetime;  the  fundamental  principle 
being  that  every  will  (being  in  the  nature  of  a  gift  or  donation)  is 
ambulatory  until  the  t^estator  dies,  and  may  meanwhile  be  super- 
seded, altered,  or  simply  set  aside  whenever  by  his  own  free  and 
rational  act  suitably  expressed  the  testator  manifests  a  correspond- 
ing intention,  or  so  changes  his  circumstances  and  state  in  life  that 
the  law  mu^t  infer  that  intent  out  of  jus'tice  to  his  new  condition.^ 
Hence  we  may  consider  revocation  under  two  distinct  leading 
aspects:  (1)  revocation  by  the  testator's  direct  act;  (2)  revocation 
by  inference  of  law,  from  acts  or  conduct  of  the  testator  not  direct.^ 
Under  the  former  head  may  be  considered  the  effect  of  actually 
cancelling,  destroying,  or  obliterating  the  will ;  also  of  making  a 
later  will  or  codicil  inconsistent  with  the  former ;  also  of  expressly 
revoking  by  such  later  will  or  codicil  or  by  some  other  writing ;  all 
sufficient  acts  of  direct  revocation,  in  fact,  whether  by  parol  or 
writing,  being  here  included.  Under  the  latter  head  we  consider 
more  especially  the  effect  of  subsequent  marriage  and  the  birth  of 
a  child,  or  of  marriage  alone,  or  of  a  complete  divorce. 

1.  But  as  to  wills  not  strictly  re-  be  express  or  tacit;  it  is  general,  fur- 
vocable  because  of  mutual  consider-  thermore,  when  all  the  dispositions 
ation,  see  Joint  and  Mutual  Wills,  of  the  testament  are  revoked,  and  par- 
Part  V.  post.  ticular  when  it  falls  upon  one  or  more 

2.  Under   the  Louisiana   Code,   fol-  of  the  dispositions  without  touching 
lowing   the  civil   law   provisions,   the  the  rest.     La.  Code,  §  1691. 
revocation  of  testaments  is  stated  to 

471 


§    381  LAW   OF  WILI^.  [PAET  IV. 

There  are  important  provisions  bearing  on  this  subject  in  tha 
Statute  of  Frauds,  which  our  modern  codes,  English  and  Ameri- 
can, preserve  and  extend,  with  a  view  of  reducing  the  compass  of 
loose  and  uncertain  testimony  under  this  head  as  much  as  possible. 
Instruments  which  at  this  day  must  be  made  with  solemn  formali- 
ties are  revocable  in  modem  policy  only  by  acts  equally  solemn  and 
positive,  or  nearly  so;  in  order  that  testamentary  intent  or  a 
change  of  testamentary  intent  may  be  clearly  evinced  at  the  pro- 
bate, and  the  main  conclusion  arrived  at  (which  after  all  is  the 
material  one)  what  was  the  latest  rational  disposition  of  his  es- 
tate, intended  by  the  decedent  and  duly  expressed  as  the  law  re- 
quires, if  he  meant  to  die  testate  at  all.  For  his  earlier  purposes, 
his  earlier  dispositions,  are  of  no  direct  consequence  on  general 
principle,  in  the  probate ;  it  is  the  latest  disposition  or  dispositions, 
as  a  consistent  whole, —  the  latest  legally  executed  testamentary 
scheme, —  or  that  alternative  and  substitute,  the  public  scheme  for 
intestacy,  by  which  his  estate  must  as  a  general  rule  be  settled  and 
his  property  descend  and  be  distributed. 

§  381.  The  Same  Subject. 

The  English  Statute  of  Frauds,  as  we  have  already  seen,  con- 
formed to  Lord  I^ottingham's  wishes,  in  providing  that  no  written 
will  should  be  repealed  or  altered  by  any  words  or  will  by  word  of 
mouth ;  that  is  to  say,  by  testament  merely  nuncupative.^  The 
sixth  section  of  this  celebrated  act  was  still  more  explicit,  in  dis- 
countenancing doubtful  revocations,  so  far  as  related  to  devises  of 
land.  That  section  declared  that  no  devise  in  writing  of  land, 
etc.,  nor  any  clause  therex)f,  should  be  revocable  otherwise  than  by 
some  other  will  or  codicil  in  writing,  or  other  writing  declaring  the 
same,  or  by  burning,  cancelling,  tearing  or  obliterating  the  same 
by  the  testator  himself,  or  in  his  presence  and  by  his  directions  and 
consent;  but  all  devises  and  bequests  of  land,  etc.,  should  remain 

3.  Fiupra,  §  379;  Act  29  Charles  II.      nuncupative  will.     McCune  v.  House^ 
(1G76-77),    §    22.      A    duly    executed      8  Ohio,   144. 
written   will   cannot  be  revoked  by   a 

472 


CHAP.  I.]  REVOCATION  OF  WILLS.  §    381' 

and  continue  in  force  until  the  same  were  burnt,  cancelled,  torn  or 
obliterated  by  tbe  testator  or  his  directions  in  manner  aforesaid, 
or  unless  the  same  were  altered  by  some  other  will  or  codicil  in 
writing,  or  other  writing  of  the  devisor,  signed  in  the  presence  of 
three  or  four  witnesses  declaring  the  same.*  The  effect  of  this 
enactment  was  to  demand  on  the  testator's  part  either  one  of  thoso 
plain  and  palpable  acts  which  naturally  signifies  a  changed  inten- 
tion, like  burning,  cancelling,  etc.,  the  instrument  itself,  and  which 
requires  no  witness,  because  the  act  itself  takes  away  or  discredits 
proof  of  the  will ;  or,  instead,  some  other  instrument  in  writing 
executed  with  all  the  formalities  of  the  original  one. 

At  the  time  of  this  enactment,  and  by  virtue  of  its  provisions, 
no  wills  required  an  attestation  except  devises  of  lands.''  But 
when  the  legislature  prescribed  for  wills  of  personal  property,  for 
all  wills  in  fact,  the  same  solemn  execution  by  the  testator  and  a 
stated  number  of  witnesses,  the  rule  of  written  revocation  con- 
formed to  the  new  policy.  Under  the  English  act  of  1  Vict.  c.  2G, 
§  20,  it  is  declared  accordingly,  that  no  will  shall  be  revoked  but 
by  another  will  or  codicil,  or  by  some  writing  executed  like  a  will, 
or  else  by  destroying  the  same.^  In  the  United  States,  we  may 
add,  the  same  policy  has  been  quite  generally  favored;  and  pro- 
visions of  this  character,  based  in  language  upon  the  English  Stat- 
ute of  Frauds  but  extended  to  wills  of  all  kinds,  are  common  to 
our  legislation  in  every  quarter  of  tbe  land.^     We  are  to  observe, 

4.  Act  29  Charles  II.  §  6.  stroying,    or    obliterating    of    the    in- 

5.  See  supra,  §  253.  strument.     And  this  must  be  done  by 

6.  Act  1  Vict.  26,  §  20.  For  the  the  testator;  or,  as  most  of  our  State 
precise  language  used,  see  Appendix,  legislatures  provide,  by  some  other 
post.  person,  in  his  presence,  and  by  his  di- 

7.  4  Kent  Com.  520,  521,  and  cita-  rection.  Some  local  varieties  of  Ian- 
tions.      As   to   the    several    American  guage  will  be  found.     lb. 

codes   on   this   subject,   see    Stimson's  Where     a    statute     prescribes     the 

Am.  Stat.  Law,  §  2672.     In  nearly  all  mode  by  which  a  will  may  be  revoked, 

the  United  States  it  is  expressly  pro-  evidence    of    its    revocation    by    any 

vided  that   no  will,  devise   in  a  will,  other  mode  is  inadmissible.     81  Ala. 

or  codicil,  can  be   revoked   except  by  418. 
the   burning,    tearing,   cancelling,   de- 

473 


§  382 


LAW  OF  WILLS. 


[part  IV. 


however,  that,  as  the  language  of  the  later  English  enactments  re- 
duces the  scope  of  infonnal  and  inexplicit  revocation  once  so  liber- 
ally permitted,  so  does  American  legislation  tend  at  this  day,  in 
the  same  direction,  while  codes  differ,  nevertheless,  in  fixing  the 
standard,  and  use  terms  more  or  less  comprehensive  to  denote  it.* 
Revocation  by  the  testator's  direct  act  is  what  these  codes,  English 
and  American,  seek  to  circumscribe ;  for,  as  we  shall  see,  that  revo- 
cation which  the  law  implies  from  a  changed  condition  in  the  testa- 
tor's condition  and  circumstances,  marriage  more  especially,  is  still 
a  feature  of  our  law.^  And  the  testator's  direct  act  of  revocation 
ought  in  all  cases  to  be  accompanied  with  the  intention  to  revoke. 

§  382.  Oral  or  Implied  Revocation  not  recognized. 

A  written  testament,  then,  cannot  be  revoked  in  modem  practice 
by  mere  words  of  oral  revocation,  however  emphatic  of  expression 
or  intended  to  take  absolute  effect.^     Still  less  can  wills  be  made 


8.  The  Massachusetts  statute,  for 
instance,  declares:  "No  will  shall  be 
revoked  unless  by  the  burning,  tear- 
ing, cancelling,  or  obliterating  of  the 
same,  with  the  intention  of  revoking 
it,  by  the  testator  himself,  or  by  some 
person  in  his  presence  and  by  his  di- 
rection; or  by  some  other  writing, 
signed,  attested,  and  subscribed  in  the 
same  manner  that  is  required  in  the 
case  of  a  will;  but  nothing  contained 
in  this  section  shall  prevent  tlie 
revocation  implied  by  law  from  sub- 
sequent changes  in  the  condition  or 
circumstances  of  the  testator."  Mass. 
Pub.  Stats.  (1882)  c.  127,  §  8.  Cf. 
the  precise  language  used  in  other 
American  enactments  upon  this  same 
subject. 

9.  Stat.  1  Vict.  c.  26,  §§  18,  20,  ex- 
pressly provides  for  revocation  by 
Bubsoquent  marriage.  The  Massachu- 
setts statute,  supra,  is  seen  to  reserve 
revocations    implied    by    law.      Other 

4 


instances  from  the  codes  might  bbe 
cited.  The  main  point  of  modern  in- 
terest is  whether  marriage  alone  re- 
vokes as  to  both  sexes,  without  the 
birth  of  a  child.     See  §§  424-426,  post. 

1.  Supra,  §  381;  Hylton  v.  Hylton, 
1  Gratt.  161;  Perjue  v.  Perjue,  4 
Iowa,  520;  Jackson  v.  Kniflfen,  2 
Johns.  31,  3  Am.  Dec.  390,  2  Ycates, 
170;  Kent  v.  Mahaffey,  10  Ohio  St. 
204;  Wittman  v.  Goodhand,  26  Md. 
95;  Jones  v.  Moseley,  40  Miss.  261, 
90  Am.  Dec.  327;  Slaughter  v.  Stev- 
ens, 81  Ala.  418,  2  So.  145;  Kirk- 
patrick  v.  Jenkins,  96  Tenn.  85,  33 
S.  W.  819.  Before  the  Statute  of 
Frauds  there  might  be  parol  revoca- 
tion. Cro.  Jac.  497.  And  see  5  Conn. 
164. 

A  testator  went  to  his  executor, 
took  the  will  from  his  custody,  and 
showed  the  envelope  containing  it  to 
liis  wife,  telling  her  that  it  was  good 
for  nothing  and  was  to  be  destroyed. 

74 


CITAP.  I.]  '  REVOCATION  OF  WILLS.  §    383 

or  revoked  bj  legal  implication  from  outward  tokens  of  a  decedent's 
personal  feelings  towards  those  concerned  in  his  estate  f  or  by  mere 
manifestations  of  an  intention  to  make  a  different  disposition  at 
some  future  time.^ 

§  383.  Revocation  by  Burning,  Tearing,  Cancelling,  Obliterating, 
etc. 

Our  investigation  leads  us,  then,  to  compare  the  language  of 
local  enactments,  from  the  time  of  Charles  II.,  not  expressed  with 
uniform  favor,  as  to  revocation  by  direct  act  of  the  testator.  And 
first,  as  to  burning,  cancelling,  tearing,  obliterating,  and  the  like, 
with  suitable  intention.  ''  Burning,  cancelling,  tearing,  or  ob- 
literating "  is  the  language  for  which  the  Statute  of  Frauds  set3 
the  copy.*  "  Burning,  tearing,  or  otherwise  destroying  "  are  the 
words  of  the  Wills  Act)  of  Victoria,  suggesting  a  narrower  con- 
struction, but  applicable  more  universally  to  wills,  whatever  the 
kind  of  property.^  Each  American  code  employs  its  own  terms, 
but  generally  some  or  all  of  the  above. 

Such  are  the  modes  to  which  one  is  confined  who  seeks  to  re- 
voke by  what  he  does  to  the  will  itself.  It  is  obvious  that  utterly 
destroying  the  instrument  so  as  to  leave  nothing  which  may  ever 
be  produced  in  evidence  again  is  one  method  here  contemplated, 
and  the  more  favored  if  not  the  only  favored  one;  and  that  the 
other  method  consists  in  leaving  the  instrument  so  cancelled  or  ob- 
literated that  an  intent  to  revoke  may  well  be  inferred  from  its  ap- 

After  his  death,  the  instrument  was  is  for  the  testator  to  perform  the 
found  uncancelled  in  a  bureau  drawer  eflScient  act;  the  law  cannot  do  it  for 
which  contained  various  waste  pa-  him.  Jones  v.  Moseley,  40  Miss.  261, 
pers.  It  was  held  that  the  will  had  90  Am.  Dec.  327.  But  the  act  of  can- 
never  been  properly  revoked.  Good-  celling  or  disposing  may  be  ex- 
sell's  Appeal,  55  Ct)nn.  171,  10  A.  557.  plained  in  the  light  of  the  testator's 
And  see  Mackenzie's  Estate,  (1909)  feelings  where  the  act  is  in  doubt. 
P.  305.  3.  Rife's  Appeal,  110  Penn.  St.  232, 

2.  Not  even  where  the  testator  dis-  1  A.  226. 
inherited  his  son  by  will,  and  after-  4.  Stat.  Charles  II.  §  6. 

wards  became  reconciled  to  him,  can  5.  Stat.  1  Vict.  c.  26,  §  20. 

revocation  of  the  will  be  implied.     It 

475 


§    384  LAW   OF  WILLS.  [PART  IV. 

pearance.  Certainly,  if  one  means  to  revoke,  it  is  his  best  course 
to  bum  or  tear  up  his  will,  so  that  no  scrap  of  it  shall  remain  be- 
hind him;  for  otherwise,  with  all  his  pains,  he  tempts  those  who 
are  shown  what  was  given  them,  and  then  cut  off,  to  conjure  up 
doubts  whether  he  really  cancelled,  and  thus  plunge  the  estate  into 
a  doubtful  contest. 


§  384,  The  Same  Subject:  the  Sane  Intention  to  revoke  must 
accompany  the  Act. 
"Whatever  the  means  thus  employed  for  defacing  or  destroying 
the  will,  a  free  and  rational  intention  to  revoke  must  accompany 
the  act  on  the  testator's  part,  or  the  revocation  will  not  be  valid. 
Thus,  to  use  Lord  Mansfield's  illustration,  if  a  man  were  to  throw 
ink  upon  his  will  instead  of  sand,  there  would  be  no  revocation  of 
the  will  although  the  writing  were  irrecoverably  gone ;  ^  nor,  we 
may  add,  would  exposure  of  the  will  to  destruction  or  defacement 
by  insects,  mice,  acids,  fire  or  water,  through  mere  heedlessness, 
have  this  effect;  and  of  course  injury  to  the  paper  or  its  loss  by  act 
of  God,  or  from  any  cause  external  and  proximate  without  the  tes- 
tator's due  sanction,  constitutes  no  legal  revocation.  Or  suppos- 
ing a  man  having  two  wills  of  different  date  before  him,  should 
direct  the  former  to  be  destroyed  and  by  mistake  the  latter  is  can- 
celled.^ No  revocation  can  be  good  which  is  procured  by  fraud  or 
palpable  error,  or  where  the  testator  was  unduly  influenced  to  com- 
mit the  act;^  and  it  is  clearly  settled  that  the  revocation  of  a  will 
while  the  testator  is  insane  is  no  less  void  than  the  making  of  a 
will ;  ^  because  it  requires  the  same  capacity  to  revoke  a  will  as  to 

6.  Burtfnshaw  v.  Gilbert.  Covvp.  52.      main   in   force.     Giles  v.   Warren,   L. 

7.  Cowp.  52;   Onions  v.  Tyrer,  1  P.      R.  2  P.  &  D.  401. 

Wm.s.  345;  Burns  v.  Burns,  4  S.  &  R.  8.  -S'upr«,  Part  II.  c.  10;  O'Neall  v. 

205;   Strong's  Appeal,  63  A.  108'j,  79  Farr.  1  Rich.   (S.  C.)  80;  1  Pick.  546, 

Conn.  123,  118  Am.  St.  Rep.  138,  6  L.  547;  Rich  v.  Gilkey,  73  Me.  595;  Bat- 

R.  A.   (N.  S.)    1107.     Even  where  the  ton   v.   Watson,    13   Geo.   63,   58   Am. 

will  in  torn  up,  under  a  mistaken  im-  Dec.  504.    And  sec  §  427a. 

pression  that  it  is  invalid,   and  then  9.  Harris   v.   Berrall.    1    Sw.   Sc    Tr. 

gathered  up  and  preserved,  it  will  re-  153;   Scruby  v.  Fordliam,  1  Add.  74; 

47G 


CHAP.  I.]  REVOCATION  OF  WILLS.  §    385 

make  one,  and  one  cannot  intend  to  destroy,  in  a  legal  sense,  unless 
liis  mind  acts  rationally  and  to  the  point.^ 

Statutes  frequently  express  the  idea  that  the  revocation  of  a 
will  must  be  done  "  with  the  intention  of  revoking  the  same."  ^ 
Such  expression  is  not,  however,  necessary ;  for  it  was  long  ago  set- 
tled, upon  construction  of  the  Statute  of  Frauds,  which  used  no 
language  of  the  sort,  that  an  act  done  without  the  mental  intentioi] 
to  revoke  was  wholly  ineifectual.^  In  short,  the  physical  act  itself 
is  not  conclusive,  but  open  to  explanation. 

§  385.  Will  destroyed,  etc.,  unintentionally,  to  be  established  as 
it  existed. 

It  follows  that  if  a  will  were  duly  executed  by  a  testator  while 
of  sound  mind  and  acting  freely,  and  afterwards  destroyed  by  him 
or  some  one  else,  without  the  free  and  rational  animus  revocandi 
on  the  testator's  part,  such  will  may  be  established  in  probate  on 
secondary  proof  of  its  contents ;  ^  and  a  like  rule  applies  to  lost  or 
missing  wills.  But  the  presumption  arises,  that  the  will  under 
such  circumstances  was  intentionally  revdked  by  the  testator  while 
he  lived  and  was  competent  to  revoke,  and  this  presumption  must 

supra,  Part  II.;  Benson  v.  Benson,  L.  (testator    sought    to    restore    marks 

R.  1  P.  &  D.  608;  3  Hagg.  754;  Smith-  erased). 

wick  V.   Jordan,   15   Mass.   115;    For-  2.  Stat.  1  Vict.  c.  26,  §  20;   Mass. 

man's  Will,   1  Tuck.    (X.   Y.)    205;   4  Pub.  Stats.   (1882)   c.  127.  §  8;  Stim- 

Barb.  28;  Allison  v.  Allison,  7  Dana,  son  Am.  Stat.  Law,  §  2672. 

94;   Brunt  v.  Brunt,  L.  R.  3  P.  &  D.  3.  1   Wms.   Exrs.    147;    Clarkson   v. 

37;  Rhodes  v.  Vinson,  9  Gill.  169,  52  Clarkson,  2  Sw.  &  Tr.  497,  Gow.  186; 

Am.     Dec.     685;    Ford     v.     Ford,     7  Jackson  v.  Holloway,  7  Johns.  394. 

Humph.   92;    Rich  v.   Gilkey,   73   Me.  4.  Scruby  v.   Fordham,   1  Add.  74; 

595,  and  cases  cited;  Johnson's  Will,  Brand,   Re,   3   Hagg.   754;    Balton   v. 

40  Conn.  587;   Mclntire  v.  Melntirc,  Watson,  13  Geo.  63;  Voorhis  v.  Voor- 

47  S.  E.  501,  120  Ga.  67,  102  Am.  St.  his,  50  Barb.  119.     And  see  Birks  v. 

Rep.   71.     As   to  a  testator  mentally  Birks,    34    L.    J.    90;    Chamberlayne 

capable,    though    under   guardianship,  Evid.  §  2766;  §§  401,  402,  post.   As  to 

see  107  Iowa,  750.  a  will  destroyed   after  the  testator's 

1.  No  revocation   is   implied   where  death  by  one  of  his  sons,  but  estab- 

none    was     intended.       See    Birks    v.  lishe;d   in  proof  by  the  executor  who 

Birks,  34  L.  J.  90.     See  Safe  Deposit  collected   the   pieces,   etc.,   see  Leigh's 

Co.  V.  Thorn,  83  A.  45,  117  Md.   154  Goods,   (1892)   P.  82. 

477 


§    38G  LAW   OF  WILLS.  [pART  IV. 

first  be  overcome.^  Even  where  a  testator  tears  up  his  will  or 
oodieil  under  the  mistaken  impression  that  he  has  not  properly 
executed  it,  and  orders  a  new  and  similar  writing  made  out.  but 
dies  before  executing  it,  the  torn  instrument  is  admissible  to  pro- 
bate on  the  ground  that  an  intent  to  revoke  was  wanting.^  So  may 
the  will,  or  its  pieces,  be  probated,  where  the  testator  tears  the  in- 
strument while  actually  insane.^ 

§  386.  Effect  of  Intention  to  revoke  where  the  Act  does  not  cor- 
respond. 

On  the  other  hand,  if  the  maker  of  a  will,  intending  to  revoke 
it.  destroys  a  paper  which  he  is  fraudulently  induced  to  believe 
is  the  identical  instrument  when  it  is  not,  and  continues  in  the 
belief  that  his  will  has  been  revoked,  never  again  recognizing  it 
nor  knowing  of  its  existence,  this  has  been  held  a  legal  revoca- 
tion.^ Particularly  does  this  hold  true  of  a  testator  whose  infirm- 
ity makes  him  dependent  upon  those  about  him  by  whom  his  con- 
fidence is  abused ;  and  the  sufficient  act  being  applied  to  the  wrong 
paper,  the  intent  operates  legally  upon  the  true  one.®  But  where 
the  infirm  testator  directs  some  one  else  to  destroy,  and  nothing  is 
destroyed  at  all,  no  sufficient  act  appears  upon  which  the  court  can 
fasten  the  intent  to  revoke;  and  his  supposition  that  the  direction 
was  obeyed  avails  nothing.-^  iStill  less  should  a  revocation  be  in- 
ferred from  such  imperfect  acts  as  placing  one's  own  will  among 
waste  paper  and  refusing  to  receive  it  again  when  offered  to  him.^ 

Whether  the  testator's  bare  mistake,  however,  not  induced  by 

5.  See  §  402,  post.  Hise  v.  Fincher,   10  Ired.   139;    Blan- 

6.  Thornton's  Goods,  14  P.  D.  82.  chard  v.  Blanchard,  32  Vt.  62. 

7.  Hincs's  Groods,  (1893)  P.  282.  1.  Malone  v.  Hobbs,  1  Rob.  346,  39 
And  see  Mclntyre  v.  Mclntyre,  47  S.  Am.  Dec.  263;  3  Leigh,  32:  Ruiikle  v. 
E.  501,  120  Ga.  67,  102  Am.  St.  Rep.  Gates,  11  Ind.  95;  Mundy  v.  Mundy, 
71;  Brassington's  Goods,  (1902)  P.  15  N.  J.  Eq.  290;  MeBride  v.  Me- 
1  (de.stroying  when  drunk  and  putting  Bride,  26  Gratt.  476;  Trice  v.  Ship- 
together  when  sober  again).  ton,  67  S.  W.  377,  23  Ky.  Law,  2392. 

8.  .Smiley  v.  Gambill,  2  Head.  164.  And  see  next  section. 

9.  Pryor    v.    Coggin,    17    Ga.    444;  2.  Hill's    Succession,    47    La.    Ann. 

329. 

478 


CHAP.  I.]  REVOCATION  OF  WILLS.  §    387 

the  fraud  of  others,  can  cause  a  paper  to  be  revoked  which  he  did 
not  actually  revoke,  may  well  be  doubted;  as  if  one  should  care- 
lessly bum  up  some  letter  by  himself,  supposing  it  his  will,  and 
die  without  discovering  his  error.  For  it  is  straining  a  rule,  out 
of  regard  to  justice,  to  detach  the  intent  from  the  act ;  the  general 
maxim  being,  that  no  intention  to  revoke  can  constitute  a  legal  re- 
vocation unless  the  sufficient  statute  act  accompany  it.^ 

So,  too,  courts  have  not  felt  justified  in  setting  a  will  aside  on 
the  plea  that  the  coercion,  fraud  or  undue  influence  of  others  pre- 
vented the  testator  from  revoking  it  when  he  desired  to ;  ^  though 
ipossibly  they  would  in  a  heinous  ca^e.  And  it  should  be  borne  in 
mind,  moreover,  that  one  may  ratify,  republish,  or  keep  in  force 
the  will  which  he  once  meant  to  revoke  but  did  not,  by  his  own 
active  or  passive  conduct  after  the  coercion  is  removed  or  the  fraud 
or  mistake  discovered ;  ^  for  if  one's  purpose  is  to  revoke,  he  should 
pursue  that  purpose  consistently  to  the  end. 

§  387.  Burning,  Cancelling,  etc.,  must  be  by  Testator  himself,  or 
under  his  Direction,  etc. 

Inasmuch  as  revocation  involves  intention,  the  inference  arises 
that  the  physical  act  must  be  performed  by  the  testator  himself  or 
under  his  sanction  and  direction.  Nor  is  legislation  silent  on  this 
point;  for  the  Statute  of  Frauds  expressly  requires  the  burning, 
cancelling,  tearing,  or  obliterating  to  be  done  "  by  the  testator  him- 
self, or  in  his  presence  and  by  his  directions  and  consent " ;  ^  and 
the  substance,  if  not  the  phrase,  of  this  requirement  appears  in 
later  enactments,  English  and  American.^  Both  presence  and  di- 
rection of  the  testator  being  tlius  essential  where  the  act  is  per- 
formed by  another,  a  will  is  not  legally  revoked,  though  destroyed 

3.  Delafield  v.  Parish,  1  Redf.  (N.  111.  53,  41  L.  R.  A.  (N.  S.)  105,  and 
Y.)  1;  25  N.  Y.  9;  Blanchard  v.  Blan-      cases  cited. 

chard,   32  Vt.   62;    cases  post.  5.  Taylor    v.    Kelley,    31    Ala.    54; 

4.  Floyd  V.  Floyd,  3  Strobh.  44;  Lamb  v.  Girtman,  26  Geo.  625; 
Smith  V.   Fenner,   1   Gall.   170;    Gra-      CNeall  v.  Farr,  1  Rich.  SO. 

ham  V.  Burch,  47  Minn.  171,  174,  28  6.  Supra,  §   381. 

Am.    St.    Rep.    339,    49    N.    W.    697;  7.  Ibid. 

Bohleber  v.  Rebstock,  99  N.  E.  75,  255 

479 


§    387  LAW   OF  WILLS.  [PAKT  IV. 

by  the  testator's  own  order,  if  burned  or  torn  where  he  did  not  or 
could  not  see  or  take  cognizance  of  the  deed  done.^  The  local 
statute  must  determine  whether  both  presence  and  direction  are 
here  indispensable. 

Destruction  of  the  instrument,  then,  by  a  third  party  without 
the  testator's  permission  or  knowledge,  whether  before  or  after 
his  death,  would  be  an  invalid,  if  not  a  criminal  act.^  Ratifica- 
tion by  the  testator  of  such  a  destruction  is  not  readily  to  be  in- 
ferred.^ On  the  other  hand,  no  fraud  is  committed  by  any  per- 
son in  destroying  or  assisting  to  destroy  a  will  by  the  genuine  ox- 
press  direction  and  in  the  presence  of  the  testator,  though  apart 
from  all  others ;  for  every  testator  has  the  right,  while  in  the  full 
possession  of  his  faculties  and  acting  freely,  to  destroy  his  own 
will  at  any  time  or  in  any  manner  he  pleases,  be  it  secretly  or 
■openly.^ 

If  a  person,  confided  in,  disobeys  the  testator's  direction,  though 
deceitfully,  and  preserves  the  will  intact,  no  legal  revocation  takes 
place;  for  nothing  is  destroyed  or  cancelled.^  But  deceit  and 
disobedience  to  the  extent  of  destroying  a  paper  artfully  substi- 
tuted for  the  will  in  question  in  the  testator's  presence  and  with  all 
the  precision  required  by  law  may  operate  differently ;  and  the 
testator,  remaining  ignorant  of  the  fraud  and  free  from  fault  on 

8.  Dadd's  Goods,  Dea.  &  Sw.  290;  Be,  6  Jur.  564;  1  Robert.  661;  of. 
Dower  v.  Seeds,  28  W.  Va.  113.  supra  §  292. 

9.  Haines  v.  Haines.  2  Vern.  441;  1.  Mills  v.  Millward,  15  P.  D.  20. 
Bennett  v.  Sherrod,  3  Ired.  303.  40  Quaere  whether  ratification  under 
Am.  Dec.  410;  Swanson's  Succession,  suoh  circumstances  would  constitute 
58  So.  1030,  131  La.  53.  See  New  a  legal  revocation  within  the  statute. 
York  code,  which  treats  such  acts  as  lb.  It  would  not,  according  to  Gill 
'•fraudulent."       Early     v.     Early,     5  v.  Gill   ( 1909) ,  P.  157. 

Redf.    376.      A  testator    cannot   dole-  2.  Timon  v.   Claffy,   45   Barb.   438; 

gate  his  power  of  revoking  a  will  by  §  388;   MeOarn  v.  Rundall,  82  N.  W. 

inserting    in    it   a   clause   which    con-  942,  111  Iowa  406. 

fers   on   another   an   authority   to  de-  3.  Supra,    §    386;    Ilylton    v.    Hyl- 

Htroy  it  after  his  death.     The  effect  ton,  1  Gratt.   161;    II    Ircil.  95.     And 

of  such  destruction  would  be,  to  per-  see  Mundy   v.   Mundy,    15    N.   J.    Eq. 

niit  the  contents  of  the  will  to  be  es-  290;  Graham  v.  Burch,  47  Minn.  171. 
tubiishcd   by  secondary   proof.     Ni)rtl\ 

480 


CHAP.  I.]  KEVOCATION  OF  WILLS.  §    388 

his  own  part,  the  legal  act  done  to  the  wrong  paper  has  been  treated 
as  though  done  to  the  right  one.*  Where  the  testator  asks  the 
custodian  of  his  will  to  bring  the  paper  to  him,  intending  to  re- 
voke it,  and  the  custodian  neglects  or  refuses  to  comply,  no  re- 
vocation is  constituted ; '"  and  the  same  may  be  said  where  he  sends 
any  one  else  for  the  will  and  it  is  not  brought  to  him.^  ISTor  is 
the  testator  often  without  resource  in  such  a  ca^e ;  for  he  may  still 
revoke  his  will  by  some  other  method.^ 

A  testator  cannot  delegate  the  power  of  revoking  his  will  for 
some  one  else  to  exercise  upon  surviving  him,  nor  change  or  annul 
its  terms  by  any  mere  verbal  direction  or  declaration  subsequent 
to  its  execution.^  ]^or  can  he  confer  such  an  option  upon  another 
by  the  will  itself. 

§  388.  No  Witnesses  Necessary  to  the  Burning,  Cancelling,  etc. 

It  is  not  necessary  tbat  the  burning,  cancelling,  tearing,  or  ob- 
literation of  the  will  by  the  testator  be  attested  by  witnesses.  In- 
deed, a  leading  advantage  which  such  means  of  revocation  are  sup- 
posed to  afford  consists  in  the  secrecy  permitted  to  the  lawful  dis- 
poser.*    But  various  American  codes  require  proof  by  at  least  two 

4.  Supra,  §  386;  Smiley  v.  Gam-  7.  A  testator,  finding  himself  thus 
bill,  2  Head,  164;  Hise  v.  Fincher,  thwarted,  may  execute  a  new  will,  or 
10  Ired.  139.  a   revocation   in   writing,   in   presence 

5.  Laycroft  v.  Simmons,  3  Bradf.  of  witnesses.  And  if  an  extreme  case 
(N.  Y.)   35.  should  show  that  by  daring  force  or 

6.  In  M'undy  v.  Mundy,  15  N.  J.  fraud,  and  against  his  protest,  the 
Eq.  290,  a  testator  asked  his  wife  to  means  of  revocation  were  utterly  de- 
bring  his  will  from  the  place  of  de-  nied  him,  so  that  he  could  not  exe- 
posit,  intending  to  burn  it.  She  cute  his  intention,  the  court  would 
afterwards  induced  liim  to  suppose  pronounce,  perhaps,  according  to  his 
that    she    herself    had    brought    and  wislies. 

burnt  it.     It  was  held  that  there  wis  8.  Stockwell    v.   Ritherdon,    1   Rob- 
no    revocation,    the    will    not    having  ert.  661 ;   White's  Will,  25  N.  J.  Eq. 
been  burnt.     See  also  Bohleber  v.  Reb-  501.     See  North  Re,  6  Jur.  564.    But 
stock,  99  N.  E.  75,  255  111.  53,  41  L.  cf.  §  293,  supra. 
R.  A.   (N.  S.)   105   (testator  thwarted  9.  Timon  v.  Claffy,  45  Barb.  438. 
by  sons  when  confined  to  his  bed  and 
asking  for  a  lawyer). 

31  481 


§    389  LAW   OF  WILLS.  [pART  IV. 

witnesses  where  the  ^act  is  done  by  some  other  person  under  the 
testator's  direction/ 

§  389.  Destruction  of  a  Will  by  Burning,  Tearing,  etc.,  illus- 
trated:   English  Cases. 

The  utter  destruction  of  one's  will  by  burning,  tearing,  and  the 
like,  the  intent  accompanying  the  act,  supplies  the  simplest  in- 
stance of  revocation.  Destniction  is  the  only  mode  favored  in  this 
connection  by  the  English  Statute  of  Victoria  and  many  Ameri- 
can codes;  defacement  being  deemed  too  dubious  an  act.  'Not 
only  burning  or  tearing  would  satisfy  such  enactments,  but  cut- 
ting, throwing  into  the  water,  steeping  in  acids,  and  ether  equiva- 
lent destructive  acts.^ 

But  the  difficulty  to  solve,  is  whether  statutes  like  these  exclude, 
by  inference,  whatever  destruction  of  the  instrument  falls  short 
of  annihilation,  or  at  least  of  rendering  original  proof  of  its  con- 
tents impossible.  Some  have  argued  for  this  narrow  construction. 
But  the  English  courts  of  probate  have  ruled  less  strictly ;  and 
where  the  testator  has  cut  out  his  own  name  from  the  will  with 
clear  intent  to  revoke  it,  this  act  is  held  a  sufficient  destruction ; 
for  an  essential  part  of  the  will,  an  integer,  is  thereby  destroyed, 
nor  does  the  statute  expression  "  otherwise  destroying  "  necessi- 
tate a  destruction  of  the  entire  instrument.^     So  may  cutting  out 

1.  Stimson  Am.  Stat.  Law,  §  2672.  be  perfectly  illegible,  tbis  act,  accom- 

2.  Wms.  Exrs.  134;  Hobbs  v.  panied  by  the  suitable  intent,  would 
Knight,  1  Curt.  768;  Clarke  v.  constitute  a  revocation  within  the 
Scripps,  2  Rob.  563,  570,  575.  Statute    of    Victoria.      See    also    Sir 

3.  Hobbs  V.  Knight,  1  Curt.  768.  It  John  Dod-son  in  Clarke  v.  Scripps,  2 
is  here  observed  by  Sir  Herbert  Jen-  Rob.   563,   5  Notes  Cos.  390. 

ner   that,   l)y   parity   of   reasoning,    if  In   Williams  v.   Tyley.   Johns.   530, 

the  names  of  the  witnesses  were  taken  it  was  held  n  sufficient  destruction  for 

away    by    the    testator    animo    revo-  one,   who   intended   revoking,   to   tear 

randi,  it  would  be  a  good  destruction  off  the  signatures  he  had  made  to'the 

of    the   will    under   tlie   act.      The    in-  first    four    sheets    and    strike   his    pHwi 

olination  of  his  opinion  was,  upon  the  through  the  last  signature;  the  effect 

same  principle,  that  if  the  testator's  being    to    make    the    instrument    dif- 

signature  had  been  burnt  or  torn  out,  ferent    in    execution    from    what    the 

or  even  so  carefully  obliterated  as  to  attestation  clause  described. 

482 


CITAP.  I.]  REVOCATION  OF  WILLS.  §    390 

that  part  of  the  will  which  one  would  call  the  principal  part  con- 
stitute a  sufficient  revocation,  if  the  full  intent  accompanied  the 
act ;  ^  or  even  tearing  off  the  seal  animo  revocandi,  though  a  seal  is 
admitted  to  be  no  essential  part  of  a  will.^  But  to  cut  out  a  par- 
ticular clause  or  the  name  of  a  particular  legatee  or  some  minor 
part  of  the  will,  imports  only  a  revocation  pro  tantof'  So  too  the 
mutilation  of  a  will  by  cutting  out  the  executors'  clause  has  been 
treated  as  simply  revoking  the  choice  of  executors.^  And  while 
pasting  a  blank  paper  may  amount  to  destniction,  total  or  pro 
tanto  as  the  case  may  be,  inasmuch  as  the  original  writing  becomes 
effiaced  in  consequence,  the  idea  of  "  destroying  "  under  the  Stat- 
ute of  Victoria,  is  not  realized  by  acts  which  fall  short  of  efface- 
ment.^  Indeed,  the  English  cases  which  construe  that  enactment, 
rely  upon  some  act  of  destruction,  which  so  far  as  it  goes  utterly 
effaces,  and  in  order  to  revoke  the  whole  will  destroys  some  inte- 
gral part  essential  to  the  entirety  of  that  will.^  And  of  course  the 
full  intention  to  revoke  should  accompany  the  act,  or  no  such  con- 
sequence will  follow.'^ 

§  390.  The  Same  Subject. 

Under  the  Statute  of  Frauds,  however,  a  very  slight  act  of  bum- 

4.  Williams  v.  Jones,  7  Notes  Cas.  1  Sw.  &  Tr.  31.  And  where  the  will 
106 ;  Gullan  Re,  1  Sw.  &  Tr.  125 ;  26  consists  of  various  sheets,  each  of 
Beav.  64.  which  is  signed  and  attested,  it  is  the 

5.  Price  v.  Powell,  3  H.  &  N.  341.  signature  and  attestation  at  the  end 
This  decision  of  the  Court  of  Ex-  whose  destruction  is  disastrous.  Gul- 
chequer  went  upon  the  ground  that  Ian  Re.  1  Sw.  &  Tr.  125,  26  Beav.  64. 
the  attestation  clause  declared  this  But  destroying  the  principal  part  of 
instrument  to  be  under  seal,  and  the  the  will  may  prove  equally  so.  lb. 
seal  being  torn  off,  the  will  ceased  to  And  so  with  cutting  off  signatures 
be  the  instrument  which  the  testator  on  earlier  sheets,  where  something 
purposed  to  execute  and  publish.  in  the  will  or  the  attestation  clause 

6.  Giles  V.  Warren,  L.  R.  2  P.  &  D.  makes  those  signatures  an  integral 
401;  Woodward  Re,  L.  R.  2  P.  &  D.  and  necessary  part  of  the  will  Har- 
200.  ris  Re,  3  Sw.  &  Tr.  485.     Scratching 

7.  Maley's  Goods,  12  P.  D.  134.  out  signatures  with  a  knife  is  a  re- 

8.  Horsford's  Goods,  L.  R.  3  P.  &  D.  vocation  within  the  Statute  of  Vic- 
211.  toria.    Morton's  Goods,  12  P.  D.   141. 

9.  Tearing    off    signatures    and    at-  1.  Cheese  v.  Lovejoy,  2  P.  D.  251. 
testation  has  this   effect.     Lewis  Re. 

483 


§391  LAW  OF  WILLS.  [ PART  IV. 

ing  or  tearing  might  suffice  for  revocation  if  a  genuine  intention 
accompanied  the  act.^  But  some  burning  or  tearing,  if  only  of 
a  small  part,  or  so  as  to  scorch  or  mutilate  the  paper,  was  needful ; 
mere  intention  or  attempt  did  not  fulfil  the  statute ;  and  yet  it 
mattered  not  that  the  writing  was  still  legible  in  spite  of  the  act, 
or  the  maker's  disposition  traceable  by  putting  the  torn  pieces  of 
his  will  together.^  Where  the  testator  arrests  his  own  design  be- 
fore the  act  is  completed,  revocation  does  not  take  place.* 

§  391.  Cancelling,  Obliterating,  etc.,  illustrated:    English  Cases. 

A  more  equivocal  act  is  the  mere  defacement  of  the  instrument 
by  cancelling,  obliterating,  and  the  like :  modes  of  revocation 
saetioned  by  the  Statute  of  Frauds,  but  discarded  because  of  their 
uncertain  tenor,  in  the  later  enactment  of  Victoria.  And  here  let 
us  remark,  that  by  that  earlier  legislation  such  acts  as  tearing  off 
or  effacing  one's  signature  and  seal  at  the  end  of  the  will  were  the 
common  expression  of  a  testator's  intention  to  revoke,  and  required 
no  such  strain  of  interpretation  as  English  courts  must  now 
apply ;  ^  for  if  the  act  was  not  "  destroying,"  it  might  at  all  events 
be  reckoned  as  cancelling  or  obliterating  the  will.  Drawing  lines 
over  the  testator's  name  was  likewise  a  sufiicient  cancellation 
within  the  earlier  act.®  Behind  such  defacement  perhaps  might 
be  read  the  entire  will  as  originally  executed,  in  all  its  integrity; 
and  though  the  testator  left  the  instrument  among  his  papers  at 
his  death,  cut  about  and  through,  without  any  real  mutilation  of 
what  was  written  therein,  the  purpose  of  cancelling,  obliterating, 
or  destroying  made  such  revocation  legally  sufficient.'^  In  fact, 
the  principle  appears  to  have  been  well  established  in  the  English 
courts  before  1837,  that  if  the  testator  intended  to  revoke  by  can- 

2.  J3ibb  V.  Thonia.s,  2  \V.  Bl.  1043.  laimholl  v.  Lumbcll,  3  Hagg.  568.    Cf. 

3.  Doe  V.  Harris,  8  Ad.  &  El.   1,   1      mpra,   §   389. 

Jarm.   130.  6.  Ca.s.    Temip.    Lee,    34.      But    cf. 

4.  Doe  V.  Perkes,  2  B.  &  Aid.  489;  fJrantley  v.  Garthwaite,  2  Russ.  90 
C'olberg  lie,  2  Curt.  832;  Elms  v.  (oblitoration,  etc.,  of  the  envelope  of 
Elms,  1  Sw.  &  Tr.  1.55.  a  will   not  effectual,  the  paper  itself 

6.  .Scruby  v.   Fordham,   1   Add.   78;       rcniaiiiiiig    intact). 

7.  Moore  v.  Moore,  1  Phillim.  357. 

481: 


CHAP.  I.]  KEVOCATTOiVr  OF  WILLS.  §    392 

celling  or  obliterating,  not  to  say  destroying,  his  will,  and  he  did 
all  he  meant  to  do  by  way  of  expressing  that  purpose,  no  literal 
cancellation  or  obliteration,  and  certainly  no  effactment,  was  nec- 
essary.^ 

Where  a  pencil  was  used  for  cancelling,  instead  of  a  pen,  the 
courts  regarded  the  act  as  prima  facie  deliberative,  rather  than 
final.  But  a  final  purpose  to  revoke  might  be  shown,  and  if  so,  the 
cancellation  effected  that  purpose.^  As  for  obliteration  under  the 
Statute  of  Frauds,  the  effect  followed  usually  the  intent;  and  here 
the  problem  was  to  determine  whether  such  acts  as  drawing  the 
pen  over  part  of  the  will  amounted  to  a  partial  or  total  revocation, 
if  intended  for  revocation  at  all.^  This  whole  subject  bristled  with 
practical  difiiculties,  and  we  need  only  observe  that,  under  such  a 
statute,  some  act  must  be  done  to  the  paper ;  that  the  revocation  may 
be  partial  or  total ;  ^  and  that  cases  have  refined  much  upon  obliter- 
ating the  material  part  of  a  clause  or  sentence,  such  as  the  devisee's 
name,  whereby  the  devise  or  gift  becomes  ipso  facto  revoked.^ 

§  392.  The  Same  Subject. 

On  the  other  hand,  no  mere  defacement  or  crossing  out  of  the 
testator's  signature,  so  as  to  leave  it  still  legible,  will  satisfy  the 
present  Statute  of  Victoria ;  for  this  constitutes  no  destruction 
within  the  act.'*  And  if  a  will  should  show  the  testator's  signa- 
ture struck  through  with  a  pen  and  another  signature  written  and 

8.  1   Wms.   Exrs.   133.  2.   1  Jarm.  Wills,  134,  135;   Sutton 

9.  M'ence   v.    Mence,    18    Ves.    348;       v.  Sutton,  Cowp.  812. 

Francis  v.  Grover,  5  Hare,  39;   Hall  3.  See   Swinton    v.    Bailey,    4   App. 

Re,    L.   R.    2   P.    &   D.    256.     Contra,  Cas.   70;   Larkins  v.  Larkins,  3   B.  & 

Tomlinson's    Estate,     133    Penn.    St.  P.  16;   Mence  v.  Mence,  18  Ves.  350. 

245,   63   A.    7,  which   presumes   noth-  The  discussion  of  a  gift  of  this  kind, 

ing    less    final    in    cancelling    with    a  where   the   clause   cancelled   or   oblit- 

lead    pencil    than    with    ink,    though  erated   designates   various   parties   in 

the  will  was  written  in  ink.    Yet  here,  interest,   invites   some  very  nice  dis- 

cancelling  a  list  of  bequests  aided  the  tinctions.  See  1  Jarm.  Wills,  134,  135, 

conclusion  of  the  court  as  to  the  can-  and  cases  cited. 

celling  intent  of  the  testator.  4.  Benson  v.  Benson,  L.  R.  2  P.  & 

1.  I    Jarm,   Wills,    134,    135.  D.   172;   Stephens  v.  Taprell,  2   Curt. 

458;   4  Notes  Cas.  101. 

485 


§    393  LAW   OF  WILLS.  [PAET  IV. 

left,  the  natural  presumption  would  be  that  the  original  erasure 
was  not  made  with  the  intention  to  revoke  at  all,  but  wa^  connected 
in  some  way  with  the  final  execution  by  the  signature  substituted.^ 
Cancelling  or  mere  obliteration  constitutes  no  revocation,  as  the 
English  law  now  stands ;  but  essential  words  as  originally  written 
must,  to  one  who  looks  at  the  will,  be  quite  illegible.* 


§  393.  Burning,  Tearing,  Cancelling,  etc.,  illustrated:  American 
Cases. 
Allowing  for  differences  of  local  legislation,  the  American  doc- 
trine closely  resembles  that  of  England ;  and  as  a  State  enactment 
conforms  to  the  looser  or  more  rigid  policy,  so  must  be  the  course 
of  judicial  precedents  in  that  jurisdiction.  In  States  which  permit 
of  cancelling  and  obliterating,  as  well  as  destruction,  tearing  off  the 
seal  of  a  will  (needless  as  a  seal  may  be  for  its  proper  execution) 
constitutes  a  revocation  when  the  intent  accompanies  the  act.^ 
Drawing  lines  over  the  testator's  name  animo  revocamdi  amounts 
furthermore  to  revocation  by  cancelling,  even  though  his  signa- 
ture be  still  legible.^     And  tearing  a  will  into  several  fragments 

5.  King,  Goods  of,  2  Robert    403.  7.  Avery   v.    Pixley,    4    Mass.   460; 

6.  Stephens  v.  Taprell,  2  Curt.  458 ;  Johnson  v.  Brailsford,  2  Nott  & 
1  Jarm.  Wills,  142;  4  Notes  Cas.  McC.  272.  In  White's  Will,  25  N.  J. 
101;  Brewster  Re,  6  Jur.  N.  S.  56.  Eq.    501,    there    was    obliteration    of 

The  policy  of  1  Vict.  c.  26  is   fur-  signatures,    besides    tearing    off    the 

ther  enforced  by   §  21  of  that  enact-  seal. 

ment,  which  declares  that  no  oblitera-  Where    a    will     is    signed    several 

tion,  etc.,  of  a  will,  after   its  execu-  times,  and  also  at  the  end,  it  is  the 

tion,   shall   have   any   effect,   "  except  last   whose   erasure   repeals   the   will. 

80  far  as  the  words  or  effect  of  the  Evans'  Appeal,   58  Penn.   St.  238. 

will  before  such  alteration   shall  not  ^    Baptist    Church    v.    Robbarts,    Z 

be  apparent,"  etc.,  unless  executed  as  Penn.  St.  110.     Even  the  drawing  of 

a  will.     See  c.   2,  post,  as  to  altera-  pencil-marks    over    the    signature    is 

tion  of  a  will,  where  this  subject  is  i,old    sufficient.      Woodfill    v.    Patton, 

discussed  more  fully.  76  Ind.  575,  40  Am.  Rep.  269;  Towns- 

A    writing    declaring    an    intention  hend  v.   Howard,   86   Me.   285,   29   A. 

to    revoke,    and    executed    as    a    will,  1077   (where  there  was  corroborating 

may   supplement   a   doubtful    erasure.  proof  besides,  of  the  intent  to  revoke, 

Gosling's  Goods,  11  P.  D.  79;   §  404.  wlieu  the  cancelling  took  place). 

486 


CHAP.  I.]  KEVOCATION  OF  WILLS.  §    394 

will  suffice,  tliongli  the  fragments  be  gathered  up  afterwards,  so 
that  the  instrument  stands  clear.* 

Cancellation  by  drawing  lines  across  is  an  equivocal  act,  how- 
ever, and  may  be  explained  by  circumstances  and  proof  of  intent.^ 
So  again,  must  the  intention  of  the  testator  decide  whether  an  ob- 
literation of  the  will  is  a  revocation  or  not.^  A  careful  interlinea- 
tion cannot  be  pronounced  an  "  obliteration  "  within  the  wills  act.' 
J^evertheless,  cancelling  or  obliterating  are  acts  very  liberally  con- 
strued at  the  old  law;  and  as  distinguished  from  destruction  or 
defacing  the  writing  so  as  to  leave  it  illegible,  the  act  implies  that 
the  instrument  is  still  preserved  in  legible  shape,  but  with  some- 
tbing  upon  it  which  indicates  that  the  will  (or  at  least  some  por- 
tion of  it,  if  revocation  be  pro  tanto)  has  ceased  to  stand  accord- 
ing to  the  testator's  original  intention.* 

§  394.  The  Same  Subject. 

Slight  acts  accompanied  by  the  suitable  intent,  are  often  per- 
mitted to  suffice  for  this  sort  of  revocation.  Under  our  earlier 
legislation,  it  is  ruled  that  the  slightest  tearing  or  burning,  even  of 
an  unnecessary^  part  of  a  will,  accompanied  by  evidence  aliunde 

9.  Sweet  v.  Sweet,  1  Redf.   (N.  Y.)  revocation.     Clark  v.  Smith,  34  Barb. 

451.      Here    the    intended    revocation  140. 

was  clear,  and  the  act  was  held  com-  3.  Dixon's  Appeal,  55  Penn.  St.  424. 

plete,     though     the     testator's     wife  4.  Evans'     Appeal,     58     Penn.     St. 

gathered    the    fragments    again,   un-  238.     A  will  may  be  cancelled  by  an 

known  to  him,  and  sewed  them  care-  act    done    to    the    instrument    which 

fully  together,   so  that  the  will  was  stamps  upon  it  an   intention  that  it 

legible.     And   see   77   N.   Y.   S.    166;  shall   have  no  effect,   though  the  act 

Evans'  Appeal,  58  Penn.  St.  238 ;  133  be  not  a  complete  obliteration  or  phy- 

Penn.  St.  245,   19  Am.  St.  Rep.  640,  sical  destruction.     "  Obliteration  "  in 

7  L.  R.  A.  209,  19  A.  482.  the  wills  act  is  not  confined  to  effac- 

1.  Bethel  v.  Moore,  2  Dev.  &  B.  311;  ing  letters  or  words  so  that  they  can- 
Smock  v.  Smock,  11  N.  J.  Eq.  256.  not  be  read.     And  "  cancellation  "  of 

2.  Jackson  v.  Holloway,  7  Johns.  a  will  means  any  act  done  to  it  which 
394;  Means  v.  Moore,  3  McCord,  282.  in  common  understanding  is  regard- 
And  see  Frear  v.  Williams,  7  Baxt.  ed  as  cancellation  when  done  to  an- 
350.  Erasures  which  do  not  mater-  other  instrument.  It  must  be  an  act 
inlly  affect  the  meaning  or  force  of  done  to  the  will  itself  animo  cancel- 
the  will  have  not  the  effect  of  legal  landi.     lb. 

487 


§    394  LAW   OF  WILLS.  [part  IV. 

of  the  intention  to  revoke,  is  a  revocation.-^  The  destruction  or 
cancelling  of  a  principal  part  of  the  will  may  serve  for  the  whole.® 
But  a  will  cannot  be  revoked  by  any  mental  intention  of  the  testa- 
tor, even  though  such  intention  be  evidenced  by  a  written  state- 
ment, unless  the  statutory  forms,  whatever  those  may  be,  are  com- 
plied with.'^  Apart  from  that  consideration,  the  broad  inquiry 
must  be,  what,  in  view  of  the  surrounding  circumstances,  the  tes- 
tator really  intended ;  and  revocation,  whether  of  the  whole  in- 
strument or  a  part,  should  be  determined  accordingly.^  Such  is 
the  American  doctrine,  and  it  differs  not  essentially  from  that  of 
the  mother  country. 

But  some  of  our  latest  American  enactments  are  quite  as  rig- 
orous as  that  of  Victoria,  in  confining  simple  revocation  of  the  in- 
strument itself  to  acts  whose  nature  is  to  destroy.  Thus,  under  the 
Iowa  Code,  which  provides  that  a  will  may  be  revoked  by  destruc- 
tion, or  by  cancellation  with  intent  to  revoke  if  the  cancellation  is 
witnessed  in  the  same  manner  as  a  will,  it  is  held  that  a  will  is  not 
revoked  by  interlining  or  drawing  a  scroll  through  the  signature 
so  as  to  leave  it  still  legible.  For,  admitting  that  to  destroy  is  not 
necessarily  to  annihilate,  within  this  statute,  there  can  be  no  de- 

5.  Dan  v.  Brown,  4  Cow.  483;  6  lb.  in  view  of  the  proof,  to  revoke  the 
377;  Johnson  v.  Brailsford,  2  Nott  codicil  only,  and  not  the  will  on  the 
&  M.  272;  4  Kent  Com.  582.  reverse  side  of  the  paper,  though  some 

6.  In  Muh's  Succession,  35  La.  words  which  the  will  contained  were 
Ann.  394,  48  Am.  Rep.  242,  four-  carried  away.  And  see  cases  cited  in 
fifths  of  the  legacies  were  erased  with  preceding  section.  Ill  Mo.  App.  447 
the  pen,  but  still  legible;  the  clause  90  S.  W.  1037)  ("burning"); 
appointing  executors  was  erased  (Mass's  Estate,  60  P.  186,  14  Col.  App. 
more  completely,  and  tlie  testator's  377;  Gardner  v.  Gardiner,  19  Atl. 
signature  was  left  hardly  legible  at  651,  65  N.  H.  230,  8  L.  R.  A.  383; 
all.  In  the  margin  were  several  ad-  Van  Woert's  Will,  137  N.  Y.  S.  748; 
ditions,  apparently  designed  for  a  Hartz  v.  Sobel,  71  S.  E.  995,  136  Ga. 
new  will.  It  was  licld  tlie  will  was  565  (a  "  material  portion  "  destroyed, 
revoked.  etc.,  defined  as  not  "  an  essential  por- 

7.  Dclaficld  V.  Parish,  25  N.  Y.  9;  tion  "  under  statute);  Barnes'  Will, 
Blanchard  v.  Blanchard,  32  Vt.  62.  136  N.  Y.  S.  940   (indorsing  over  sig- 

8.  Sec  Cook  Re,  5  Pa.  L.  J.  1,  where  nature  "  null  and  void,"  etc.,  a  re- 
tlic  testator  tore  ofT  his  name  at  the  vocation). 

foot  of  a  codicil,  and   this  was  held, 

488 


CHAP.  I,]  REVOCATION  OF  WILLS.  §    395 

struction  unless  the  essential  words  destroyed  are  rendered  illegi- 
ble ;  and  as  for  merely  cancelling,  by  anything  short  of  this  effect, 
it  cannot  operate  unless  witnessed  like  a  will.* 

§  395.  Incomplete  Burning,  Tearing,  Cancelling,  etc. 

No  greater  difficulty  is  presented  in  this  connection  than  that  of 
determining  the  legal  effect  of  an  inchoate  or  incomplete  act  of 
burning,  tearing,  cancelling,  etc.,  according  as  the  local  statute  pre- 
scribes. But  next  to  considering  the  limits  which  the  local  statute 
may  have  set  to  the  act  of  revocation,  the  cardinal  inquiry  relates 
to  the  intention  which  appears  to  have  accompanied  the  testator's 
act.  Moreover,  as  every  court  means  to  decide  justly,  and  accord- 
ing to  the  real  merits  of  the  controversy,  where  it  may,  the  in- 
choate or  incomplete  act  is  helped  out  if  possible,  when  the  fraud 
of  others  impaired  its  efficiency ;  but  otherwise,  when  the  testator 
alone  was  at  fault  in  not  doing  all  that  the  court  asked  of  him  to 
make  his  act  positive  and  final. 

Thus,  to  take  that  range  of  acts  most  widely  permitted  by  legis- 
lation under  this  head,  namely,  burning,  tearing  or  otherwise  de- 
stroying. Under  the  Statute  of  Frauds,  a  case  arose  where  the 
testator  ordered  his  will  to  be  brought  to  him ;  he  opened  it,  looked 
at  it,  gave  a  wrench  so  as  nearly  to  tear  it,  then  rumpled  it  up  and 
threw  it  contemptuously  upon  the  fire.  But  the  will  fell  off ;  and 
as  it  lay  where  it  must  soon  have  been  burnt,  a  woman  in  the  room 
picked  it  up  and  put  it  in  her  pocket.  The  will  was  produced  for 
probate,  after  his  death,  slightly  singed  and  with  the  writing  still 
legible.  It  was  held  in  this  case  that  there  was  ^a  sufficient  ''  burn- 
ing or  tearing,"  within  the  statute,  and  that  the  revocation  was 
complete.^  Yet,  as  the  authorities  agree,  there  must  be  an  actual 
burning  or  tearing,  etc.,  to  some  extent  in  order  to  constitute  a  re- 
vocation ;  ^  and  accordingly,  where  another  testator,  who  also  in- 

9.  Gay    v.    Gay,    60    Iowa    415,    46  147,  66  A.  701;   77  N.  Y.  S.  178;   172 

Am.  Rep.  78,  14  N.  W.  238.     And  see  N.  Y.  360,  65  N.  E.  173. 

Howard  v.  Hunter,  41  S.  E.  638,  115  1.  Bibb  v.  Thomas,  2  W.  Bl.   1043. 

Ga.    357;     Knapen's    Will,    105    Md.  2.  Supra,   §   389. 

489 


§    395  LAW   OF  WILLS,  [PAET  IV. 

tended  to  destroy,  threw  his  will  upon  the  fire,  from  which  some 
one  rescued  it  in  a  similar  manner,  but  with  only  a  comer  of  the 
envelope  burned,  revocation  was  held  incomplete.^ 

The  courts  appear  to  have  reconciled  these  decisions  by  drawing 
the  line  between  scorching  the  surface  of  a  will  and  burning  only 
the  envelope  which  contains  it;  *  but  such  a  line  must  be  physically 
•an  exceedingly  fine  one.^  We  apprehend  that  other  circumstances 
really  strengthened  the  present  distinction  and  caused  the  court  to 
stretch  the  act  in  the  one  case  so  as  to  correspond  with  the  testa- 
tor's intent,  while  in  the  other,  the  intent  was  not  positive  enough 
to  bear  out  the  act.  In  the  former,  the  testator  meant  that  his 
will  should  be  destroyed,  and  imagined  that  he  had  completed  the 
act,  and  the  woman  who  rescued  the  will  deceived  him  in  preserv- 
ing it.^  But  in  the  latter,  the  testator  saw  his  will  snatched  from 
the  fire,  and  parleyed  with  the  rescuer ;  that  person  promised  to 
throw  it  into  the  fire  again,  but  did  not;  so  that  the  case  resolved 
itself  into  the  disobedience  of  a  testator's  direction  to  destroy,  a 
preservation  of  the  will  in  breach  of  trust.  Such  conduct  consti- 
tutes no  legal  revocation  of  a  will ;  '^  and  a  careful  testator,  fully 
resolved  to  carry  out  his  intention,  would  have  watched  to  see  his 
direction  obeyed  and  the  will  burnt  before  his  eyes.  An  incom- 
plete or  inchoate  act  fails  utterly  when  the  intent  was  incomplete ; 
nor  can  another's  fraud  or  disobedience  be  set  up  which  the  testa- 
tor's own  fault  promoted.^ 

3.  Doe  V.  Harris,  6  Ad.  &  El.  209.  6.  Bibb  v.  Thomas,  2  W.  Bl.  1043. 

4.  English  text-writers  seem  to  7.  Runkle  v.  Gates.  11  Ircd.  95:  1 
take  this  same  distinction  in  their  Gratt.  161;  Boyd  v.  Cook,  3  Leigh  32, 
contrast  of  these  cases.     See  1  Wms.  supra,   §§   387.  390. 

Ivxrs.  137.  8.  Doe  v.  Harris,  6  Ad.  &  El.  209. 

5.  The  cases  cited  under  tlio  earlier  Had  the  person,  in  this  case,  who 
statute  do  not  stand  upon  a  "  deatruc-  snatched  the  will  from  the  fire,  sub- 
tion  "  to  the  extent  of  ronderinf^  ea-  stituted  another  paper  adroitly,  and 
sential  words  illegible.  How  seldom,  burnt  that  instead,  the  testator  using 
then,  would  it  occur  that  if  the  en-  such  vigilance  against  the  deception 
volope  was  burned,  the  instrument  as  his  infirmities  permitted,  there 
would  not  at  least  show  signs  of  be-  would,  semble,  have  been  a  legal  re- 
ing  scorclicd. 

490 


CHAP.  I.]  REVOCATION  OF  WILLS.  §    396 

§  396.  The  Same  Subject. 

From  other  instances  in  the  reports,  the  effect  of  complete  in- 
tention may  be  contrasted  with  incomplete  where  the  act  was 
equivocal.  One  man  tears  up  his  will  under  a  mistaken  impres- 
sion that  its  provisions  are  of  no  effect;  then  recovering  himself  he 
gathers  the  pieces  together  once  more,  and  preserves  them  care- 
fully, meaning  that  the  instrument  shall  serve  its  original  pur- 
pose.® Here  it  has  been  held  that  no  complete  revocation  ever  took 
place;  and  we  may  imagine  similar  cases,  as  where  one's  will  is  ac- 
cidentally torn  while  destroying  his  old  letters,  and  the  testator 
takes  the  fragments  from  the  waste-basket,  and  restores  the  paper. 
But  another  man  tears  his  will,  intending  to  destroy  it;  and  his 
wife  or  adult  child  collects  the  pieces  and  puts  them  together  again 
neatly,  without  his  knowledge ;  here  there  is  revocation,  for  though 
the  fragments  were  not  minute,  the  animus  revocandi  was  com- 
plete, and  fraud  must  not  prevail  against  it.^  The  minuteness  of 
the  tearing  is  of  secondary  consequence;  though  without  some 
tearing  revocation  would  not  have  occurred. 

In  an  English  case  which  turned  upon  the  Statute  of  Frauds, 
the  testator,  under  a  sudden  impulse  of  anger  against  one  of  the 
devisees  under  his  will  who  had  provoked  him,  took  the  paper  into 
his  hands  to  destroy  it.  He  tore  the  will  twice  through,  when  a 
bystander  arrested  his  arm,  and,  the  offending  devisee  submitting 

vocation.  See  supra,  §  386,  and  cases  290.  But  Graham  v.  Burch,  47  Minn. 
cited.  171,  28  Am.  St.  Rep.  339,  49  N.  W. 
American  cases  appear  to  justify  697,  discountenances  the  idea  of  a 
our  line  of  distinction.  Thus,  where  formal  destruction  which  the  fraud- 
the  maker  of  a  will  threw  it  on  the  ulent  device  of  another  frustrated, 
fire,  meaning  to  destroy  and  revoke  where  in  fact  the  testator  was  care- 
it,  and  it  was  burned  through  in  three  less  and  the  will  was  put  into  a  stove 
places  without  interfering  with  the  where  no  fire  was  lit  for  two  hours 
writing,   and  the  will  was   then   res-  after. 

cued    and    preserved    against    his    in-  9.  Giles  v.  Warren,  L.  R.  2  P.  &  D, 

tention    and    without   his   knowledge,  401.      And    see    Brassington's    Goods, 

the  court  construed  this  into  a  suffi-  (1002)   P.  1 ;   §  385  supra. 

cient    revocation.      White    v.    Casten,  1.  Sweet  v.  Sweet,  I  Redf.    (N.  Y. ) 

1  Jones  L.  197,  59  Am.  Dec.  585.    And  451. 
see   Muudy   v.   Mundy,    15   N.   J.   Eq. 

491 


§    397  LAW  OF  WILLS.  [pART  IV. 

on  the  spot,  the  testator  grew  calm  and  proceeded  no  further.  He 
fitted  the  pieces  together,  and  finding  not  one  word  obliterated, 
remarked  that  it  was  good  it  was  not  worse.  Upon  this  evidence 
a  jury  found  that  the  act  of  destruction  intended  had  never  been 
complet-ed.  and  the  Court  of  King's  Bench  sustained  the  verdict. 
^No  revocation,  in  short,  had  taken  place,  and  the  will  remained  in 
full  force."  A  later  case,  where  the  testator  tore  his  will  almost 
in  two,  but  was  stopped  by  the  protest  of  others  in  the  room,  who 
told  him  that  it  would  be  dangerous  to  destroy  one  will  before  he 
had  made  another,  was  decided  on  the  same  principle.^ 

In  all  such  cases  it  is  of  much  consequence  that  the  testator, 
upon  opportunity,  treats  the  burned  or  mutilated  instrument  as 
valid,  for  the  rest  of  his  life;  for  this  circumstance  indicates  that 
a  final  and  full  revocation  was  never  intended  by  him.  And  we 
apprehend  that  under  strict  statutes  like  that  of  Victoria,  which 
require  an  act  of  ''  destroying,"  there  must  be  some  injury  com- 
mitted to  the  extent  of  destroying  the  entirety  of  the  will  or  ren- 
dering a  material  part  thereof  illegible,  else  no  revocation    will 


§  397.  Revocation  of  a  Part  only  of  a  Will  by  Destruction. 

An  analogous  difiiculty  in  the  doctrine  we  are  discussing  relates 
to  acts  of  revocation  pro  tanto.     The  English  Statute  of  Victoria, 

2.  Doe  V.  Perkes.  3  B.  &  Aid.  489.  structive  revocation,  under  the  new 
And  see  Colberg's  Goods,  2  Curt.  832 ;  Statute  of  Wills,  in  an  equivocal  case. 
Giles  V.  Giles,  1  Cam.  &  Nor.  174.  1  Wms.  Exrs.  137.    Coleridge,  J.,  con- 

3.  Elms  V.  Elms,  1  Sw.  &  Tr.  155.  sidered  this  point  in  Doe  v.  Harris, 
And  see  Giles  v.  Warren,  L,  R.  1  P.  6  Ad.  &  El.  209.  "There  must  be 
&  D.  401 ;  Coftee  v.  Coffee.  46  S.  E.  such  an  injury,  with  intent  to  re- 
620,  119  Ga.  533 ;  Swanson's  Sue-  voke,"  he  observes,  "  as  destroys  the 
cession,  58  So.  1030,  131  La.  53;  Safe  entirety  of  the  will;  because  it  may 
Deposit  &  Trust  Co.  v.  Thom,  83  A.  then  be  said  that  the  instrument  no 
45,  117  Md.  154  (trying  to  restore  longer  exists  as  it  was."  Tliis  view 
marks  erased).  is   supported  by  Hobbs  v.  Knight,   1 

4.  English  writers  consider  it  dilTi-  Curt.  768,  and  the  other  cases  cited, 
cult  to  state  at  present  any  precise  svpra,  §  389.  See  also  Gardner  v. 
extent  to  which  tiie  burning,  tearing,  Gardiner,  19  Atl.  651,  65  N.  H.  230. 
etc.,  must  go  in  order  to  justify  con- 

492 


CUAP.  I.]  REVOCATION  OF  WILLS.  §    397 

while  insisting  upon  some  sort  of  destruction,  appears  to  allow 
part  only  of  the  will  to  be  revoked  in  that  manner.^  Under  the 
older  law,  as  we  have  seen,  one  had  a  very  liberal  discretion  to  re- 
voke his  will  in  part,  and  annul  some  particular  devise  or  bequest, 
if  such  was  his  actual  intention,  by  obliterating  or  cancelling  a 
particular  clause,  or  even  material  words  therein,  the  rest  of  the 
will  standing  as  before,  agreeably  to  his  supposed  intent.^  Great 
license  prevailed,  in  consequence,  this  privilege  of  the  testator  ex- 
tending to  altering  or  interlining  the  original  instrument  at  pleas- 
ure so  as  in  effect  to  make  a  new  will,  and  that  with  very  little 
formality.^  Under  the  Statute  of  Victoria  this  practice  was 
checked  by  an  express  provision  that  obliterations,  interlineations 
or  other  alterations,  should  be  executed  with  testamentary  fomiali- 
ties ;  not  to  add  its  confinement  of  revocatioii  to  acts  of  destruction.* 
Yet  it  would  appear  that  one  may  still  revoke  yro  tanto  under  that 
act  by  tearing  up  or  burning  one  or  more  sheets  of  his  will  (sup- 
posing it  written  on  several  sheets),  as  he  was  permitted  to  do  by 
the  Statute  of  Frauds,  and  still  earlier  by  the  common  law.^ 

5.  1  Wms.  Exrs.  129;  Clark  v,  7.  Mence  v.  Mence,  18  Ves.  348; 
Scripps,  2  Eob.  593,  597;  Christmas  Ravenscroft  v.  Hunter,  2  Hagg.  68;  1 
V.  Whinyates,  3  Sw.  &  Tr.  81.  "  No  Wms.  Exrs.  143.  Drawing  a  pen 
will  or  codicil,  or  any  part  thereof,  across  the  name  of  a  devisee  or  lega- 
ehall  be  revoked  otherwise  than,  etc.,  tee  may  thus  revoke  the  devise  or  be- 
or  by  the  burning,  tearing,  or  other-  quest.  Mence  v.  Mence,  ib.  But  it 
^vise  destroying  the  same."  1  Vict.  is  otlierwise  where  such  name  occurs 
c.  26,  §  20.  But  as  to  the  effect  of  several  times,  and  the  testator  draws 
obliteration  in  part,  see  language  of  his  pen  across  in  some  places  and 
ib.  §  21;  c.  2,  post.  leaves   the  name   standing  in   others. 

6.  Supra,  §  391;  Swinb.  pt.  7,  §  Martins  v.  Gardner,  8  Sim.  73. 
16,  pi.  4;  Sutton  v.  Sutton,  Cowp.  8.  I  Vict.  c.  26,  §  21;  ib.  §  20. 
812;  Scruby  v.  Fordham,  1  Add.  78;  9.  1  Wms.  Exrs.  128,  141,  143; 
Larkins  v.  Larkins,  3  B.  &  P.  16;  Scruby  v.  Fordham,  1  Add.  74;  3 
Swinton  v.  Bailey,  4  App.  Cas.  70.  Hagg.  552.  And  see  next  c.  Though 
This  law  applied  both  to  devises  of  not  if  the  rest  of  the  will  becomes 
land  and  written  wills  of  personal  unintelligible.  Leonard  v.  Leonard 
property.  1  Wms.  Exrs.  143,  and  (1902)  P.  243  (whole  will  revoked 
cases  supra.     The  Statute  of  Frauds  thereby ) . 

speaks  of  revoking  a  devise  or  ■"  any 
clause  thereof."     Supra,  §   381. 

493 


§  397 


LAW  OF  WILLS. 


[part  IV. 


This  doctrine  of  partial  revocation,  even  under  the  restrictions 
adopted  by  later  English  legislation,  is  not  greatly  favored  in 
American  codes  at  the  present  day.  Many  of  our  local  enact- 
ments, it  is  true,  once  pursued  the  language  of  29  Car.  II.,  so  as 
to  admit  of  revocation  pro  tanto ;  but  of  late  years  that  language 
has  undergone  a  change  of  expression  in  leading  States.  Various 
codes  now  drop  all  reference  to  revocation  in  part;  and  the  gen- 
eral policy  intimates  that  such  changes  of  disposition  require  an 
instrument  executed  with  all  the  formalities  of  a  will.'^  The  ISTew 
York  statute  provides  expressly  that  no  will  shall  be  revcked  or 
altered  except  by  another  will  or  "  unless  such  will  be  burnt,  torn, 
cancelled,  obliterated  or  destroyed,"  etc. ;  and  this  is  construed 
not  to  admit  of  obliterations  in  part,  with  a  revocation  in  effect  pro 
tanto,  though  a  full  revocation  may  result  from  acts  formerly  de- 
cisive.^ In  other  instances  our  courts  have  disavowed  the  earlier 
common  law  doctrine  on  this  point,^  But  American  cases  may  be 
found  of  earlier  or  later  date,  where,  conformably  with  the  local 
statute  then  operating,  a  partial  revocation  with  suitable    intent 


1.  See  Mass.  Pub.  Stats.  (1882)  c. 
127,  §  8.  But  this  omission  of  stat- 
ute reference  to  revoking  "  in  part " 
does  not,  as  the  Massachusetts  stat- 
\ite  reads,  exclude  a  partial  revoca- 
tion in  this  manner.  Bigelow  v.  Gil- 
lott,  123  Mass.  102,  25  Am.  Rep.  32. 
The  context,  were  it  thus  construed, 
would  exclude  the  right  to  revoke  in 
part  by  a  codicil.     lb. 

2.  Lovell  v.  Quitman,  88  N.  Y.  377, 
42  Am.  Rep.  254;  25  Hun  S.'IT  This 
overrules  McPherson  v,  Clark,  3 
Bradf.  (N.  Y.)  96.  And  see  Pres- 
cott  Re,  4  Redf.  (N.  Y.)  178;  c.  2, 
-post;  1  Dem.  484;  Stimson  Am.  Stat. 
Law,  §  2672;  Van  Woert's  Will. 
131  N.  Y.  S.  748  (cutting  out  one's 
own    signature). 

3.  Esclibach  v.  Collins,  61  Md.  478, 


48  Am.  Rep.  123.  The  intended  ob- 
literation of  a  part  without  the  in- 
tention of  revoking  the  whole  will, 
cannot  constitute  a  full  revocation. 
Means  v.  Moore,  Harp.  (S.  C.)  314. 
The  Alabama  statute  does  not  permit 
of  a  partial  revocation.  If  the  name 
of  one  of  the  legatees  appears  erased 
from  the  will  offered  for  probate, 
this  may  be  offered  to  prove  that  a 
total  revocation  was  intended,  but  not 
a  partial  one.  Law  v.  Law,  83  Ala. 
432,  3  So.  252.  The  erasure  of  a 
specific  legacy  with  the  effect  of  in- 
creasing the  residuary  bequest  is  not 
a  sufficient  revocation.  Miles  Re,  68 
Conn.  237,  38  A.  39  (statute).  And 
see  Griffin  v.  Brooks,  48  Ohio  St.  211, 
31  N.  E.  734. 


494 


OJIAP.  I.]  EEVOCATION  OF  WILLS.  §    398 

lias  been  applied  to  the  cancelled  portion  of  a  will,  leaving    the 
residue  unchanged.^ 

§  398.  Difficulty  where  the  Revocation  depended  upon  Another 
Act. 

Ariiother  difficulty  snggestod  in  this  connection  relates  to  the 
effect  of  destroying  or  cancelling  where  the  testator  meant  that  his 
act  should  depend  upon  some  other  efficient  act ;  as  where  a  second 
will  was  to  be  substituted  for  the  will  revoked.  Here  the  courts 
have  tried  to  pursue  the  testator's  intention  and  accept  its  guid- 
ance; a  course  which  is  often  the  harder  for  the  reason  that  a  tes- 
tator's mind  has  not  grasped  the  exigency  at  all.  In  a  leading 
English  case  a  testator  prepared  his  second  will  and  then  cancelled 
the  first;  but  the  second  will  proved  void  for  non-compliance  with 
the  statute  forms  of  execution;  and  the  court  accordingly  ruled 
that  the  first  w^ill  remained  in  force,  inasmuch  as  the  revoked  act, 
which  depended  upon  the  validity  of  the  substituted  paper,  never 
took  full  effect.^  Here  it  happened,  however,  that  the  second  will 
varied  not  materially  from  the  first ;  in  fact,  making  a  change  in 

4,  Brown'3  Will,  1  B.  Mon.  56;  Trust  Co.  v.  Thorn,  83  A.  45,  117  Md.. 
Borden  v.  Borden,  2  R.  I.  94;  Kirk-  154  (one  clause  revoked  by  erasure, 
Patrick  Re,  22  N.  J.  Eq.  463;  Bige-  where  the  character  of  the  other  pro- 
low  V.  Gillott,  123  Mass.  102,  25  Am.  visions  remained  unaffected)  ;  Brown 
Kcp.  32;   Myrick  Prob.   128.  v.  Brown,  74  S.  E.   135,  91  S.  C.  101 

Tomlinson's   Estate,    133    Penn.    St.  (revocation  pro  towio  by  an  interlinra- 

245,  19  Am.  St.  Rep.  635,  7  L.  R.  A.  lion)  ;   Hartz  v.  Sobel,  71  S.  E.  995. 

209,    19   A.   982,   is  an   extreme   case,  136  Ga.  565   (no  revocation  pro  tanto 

which   not   only   permits  of  the  par-  allowed)  ;  Schnable  v.  Henderson,  152 

tial    revocation   of   a   will   under   the  S.    W.    231     (Tex.    Civ.    App.).      See 

local   statute,   but  allows   legacies   to  Rowan's   Estate,   83   A.   429,   234   Pa. 

be   thus   cancelled   in   a   will   written  584    (trifling  interlineations  for  iden- 

out  in  ink  by  mere  lead-pencil  alter-  tifying  beneficiaries  closer  do  not  re- 

ations,   without,   of  course,  obliterat-  voice)  ;    Sheaffer's   Estate.   87   A.   577, 

ing     what     was     originally     written.  240    Penn.    83,    102    N.    E.    465,    215 

See  further,   Hubbard  v.   Hubbard,  Mass.  276;   Osburn  v.  Trust  Co.,  102 

198    111.    621,    64   N.   E.    1038;    Hull's  N.   E.   571,  209  N.  Y.   54;    Bloodgood 

Will,    89   N.   W.   979,    117   Iowa   738;  v.  Lewis,  102  N.  E.  610,  209  N.  Y,  95.. 

Blackett    v.    Zicglor,    153    Iowa    344  5.  Onions  v.  Tyrer,  2  Veru.  742. 
(statute  defined)  ;    Safe  Deposit  and 

495 


§    398  LAW   OF  WILLS.  [PART  IV. 

the  name  of  one  of  the  trustees,  but  not  changing  the  disposition 
of  the  estate.  But  later  courts,  while  recognizing  the  same  prin- 
ciple, extended  its  operation  much  farther;  defeating  thereby,  in 
some  instances,  the  testator's  presumable  preference,  as  it  would 
seem,  for  the  sake  of  establishing  a  permanent  principle.^  And 
the  principle  appears  to  be  this :  that  where  the  cancelling  or  de- 
stroying his  first  will  was  made  by  the  testator  to  depend  upon  the 
validity  of  his  second  will  or  substitute,  and  the  second  will  or 
isubstitute  cannot  legally  take  effect,  such  cancelling  or  destroying 
fails  to  operate  as  a  revocation,  even  though  the  revoking  act  would 
per'  se  have  sufficed. 

But  this  rule  appears  to  be  confined  in  modem  practice  to  cases 
in  which  the  testator  evidently  meant  his  revocation  to  depend 
upon  the  validity  of  the  substituted  will  and  where  the  two  dis- 
positions are  closely  connected,  the  one  to  make  way  for  the  other. 
Revocation,  as  an  immediate  and  positive  act,  cannot  be  so  de- 
pendent for  its  validity  upon  some  ill-defined  purpose  which  the 
testator  cherishes  to  make  another  and  a  different  will  hereafter. 
And  we  may  regard  it  as  a  principle  that  any  will  which  is  de- 
liberately destroyed  without  accident  or  mistake,  the  full  present 
purpose  to  revoke  accompanying  the  act,  becomes  revoked,  even 
though  the  testator  meant  to  make  a  new  will  at  some  future  time 
as  its  substitute,  but  omitted  to  do  so.^  For  the  mere  indefinite 
purpose  to  make  another  will  hereafter  does  not  prevent  an  imme- 
diate revocation  from  taking  effect.^  And  in  general,  a  present 
revocation  is  quite  consistent  with  some  purpose  to  execute  here- 
after another  will,  which  purpose  is  never  really  carried  into 
effect ;  ^  for  here  the  law  of  intestacy  appears  to  supply  the  testa- 

6.  See      Burtonshaw      v.      Gilbert,      Dec.  361;   Safe  Deposit  &  Trust  Co., 
Cowp.  52;   Perrot  v.  Perrot,  14  East,       S3  A.  45.  117  Md.  ir,l. 

440;  Thynne  v.  Stanhope,  1  Add.  53;  8.  32  L.  J.  Prob.  202;   Williams  v. 

1    Wms,    Exrs.    148-152;    1    Eq.    Ca.s.  Tyley,  Johns.  530. 

Abr.   409;    3    ib.    776.      See   Stamford  9.  Brown    v.    Thorndiko,    15    Pick. 

V.  White   (1901),  P.  46.  338;    Johnson   v,   Brailsford,   2  Nott. 

7.  Scmmcs  v.  Semmes,  7  TTar.  &  J.  &   M.   272. 
.388;    1    ITow.     (Miss.)     336,    29    Am. 

496 


<:;nAP.  i.]  revocation  of  wills.  §  399 

tor's  wishes  more  appropriately  if  a  hiatus  is  left  than  the  scheme 
of  disposition  which  the  testator  had  himself  recalled.  ISTor  does 
the  cancelling  of  a  new  will  restore  the  former  one  which  has  been 
finally  cancelled  and  revoked.^ 

Other  instances  may  be  adduced  in  this  connection  where  de- 
pendent acts  of  revocation  fail  because  that  which  was  depended 
on  gained  no  efficacy.  As  where  it  appears  that  the  testator  did 
not  intend  to  die  intestate;  but  made  alterations  in  his  first  will, 
as  preparatory  to  executing  a  new  one,  and  not  for  a  final  cancel- 
ling of  the  former;  and  his  death  prevented  his  second  will  from 
being  executed,^  But  if  the  second  will  or  substitute  be  legally 
prepared  and  duly  executed,  so  as  to  take  the  place  of  the  cancelled 
instrument  in  probate,  revocation  is  not  hindered  by  a  failure  or 
disappointed  operation  of  the  second  disposition  through  a  legal 
construction  of  its  terms.^  Prudence  suggests,  on  the  whole,  that 
a  testator  who  prefers  his  old  will  to  stand  rather  than  die  intes- 
tate, should  carefully  refrain  from  cancelling  or  destroying  it 
until  the  new  one  has  been  executed  in  due  form;  and  sometimes 
he  will  retain  the  earlier  will  for  presentation  in  case  his  later  will 
should  fail  of  probate  from  some  cause. 

§  399.  Revocation  where  Wills  are  Executed  in  Duplicate. 

If,  as  sometimes  is  done  for  the  greater  security,  a  testator 
executes  his  will  in  duplicate,  keeping  only  one  part  while  his  ex- 
ecutor, attorney,  or  another  in  his  confidence  has  custody  of  the 
other,  the  effect  of  destroying  or  cancelling  one  of  such  papers 
without  the  other  may  give  rise  to  controversy.  Doubtless  his 
true  and  safe  course  is  to  gain  control  of  both  papers  and  revoke 

1.  4  Kent  Com.  531.  But  see  c.  altered  the  duplicate  of  his  first  will, 
post,  as  to  republication;  Marsh  v.  leaving  the  duplicate  intact  with  tlie 
Marsh,  3  Jones  L.  77.  executor. 

2.  Applebee's  Goods,  1  Hagg.  153;  3.  As  if  the  second  disposition 
32  L.  J.  P.  M.  &  A.  202 ;  Eeles's  should  fail,  because  the  legatee  was 
Goods,  2  Sw.  &  Tr.  600.  In  Hyde  incapable  of  taking.  Tupper  v.  Tup- 
V.  Mason,  cited  1  Wins.  Exrs.  149,  per,  1  Kay  &  J.  665 ;  Quinn  v.  Butler, 
150,    and   4    Burr   2515,   the   testator  L.  R.  6  Eq.  225. 

32  497 


§    -iOO  LAW    OF    WILLS.  [PART    IV. 

them  equally  bj  one  and  the  same  act.  But  this  is  not  essential ; 
for  where  a  testator  cancels  or  destroys  by  a  suitable  act  the  paper 
in  his  own  possession,  it  may  be  strongly  presumed  that  he  does 
not  intend  the  duplicate  to  stand.*  On  the  other  hand,  if  he  has 
possession  of  both  papers  and  destroys  or  mutilates  one,  leaving 
■the  other  intact,  the  will  may  be  presumed  unrevoked.^  The 
strength  of  the  presumption  in  equivocal  acts  will  vary,  however, 
according  to  circumstances;  possession  or  non-possession  of  the 
duplicate  being  the  element  chiefly  regarded  and  yet  not  conclusive 
of  the  issue.^ 

§  400.  Effect  of  destroying,  etc,  Will,  but  not  Codicil. 

WTiere,  again,  there  is  a  will  and  codicil,  and  the  will  appears 
to  have  been  destroyed,  but  not  the  codicil,  the  question  arises 
whether  the  act  of  revocation  has  annulled  both  instruments. 
This  must  be  determined  by  circumstances ;  and,  as  in  duplicate 
wills,  a  testator's  custody  of  both  instruments  or  of  one  only  may 
go  far  to  aid  the  solution.  But  supposing  the  testator  to  have 
kept  possession  of  both  papers  or  to  have  had  equal  acce.-s  to  them, 
the  effect  of  revoking  his  will  alone  must  turn  mainly  upon  the  de- 
pendence or  independence  of  the  codicil.  If  the  provisions  of  the 
codicil  are  inseparably  blended  with  those  of  the    will,    the    act 

4.  Cowp.  49,  2  Phillim.  23;   Strick-  voked  by  revoking  one  of  two  copies 

land  V.  Strickland,  8  C.  B.  724 ;  Pem-  retained  by   testator ) . 

Lerton    v.    Pemberton,    13    Ves.    310;  5.  Roberts  v.  Round,  3  Hagg.  548. 

O'Neall  V.  Farr,  1  Rich.  80.     And  see  See   Lord   Chancellor   Erskine's   rules 

Rickards  v.  Mumford,  2  Phillim.  23;  of  presumption  as  laid  down  in  Pem- 

2  Hagg.  266;   Hyde  v.  Mason,  supra.  berton  v.  Pemberton,  supra.     And  see 

Where  a   testator  executed   in   dupli-  Schofield's  Will,  129  N.  Y.  S.  190. 

cate,   delivering   a   copy   to   his   wife,  6.  I  Jarm  Wills.  137.  138;   I  Wms. 

and  it  does  not  appear  what  became  Exrs.   154-156;    Strickland  v.   Strick- 

of   the   latter   copy,   the    inference   is  land,  8  C.  B.  724;   Hubbard  v.  Hub- 

that  the  will  offered   for  probate  is  bard,   3  Cli.  D.  738. 

the   instrument   he   retained.      Snider  It  will  not  be  presumed  from  cir- 

V.  Burks,  84  Ala.  53,  4  So.  225.     See  cumstances  that  a  will  was  executed 

(1897)    P.  40.     See  Paige  v.  Brooks,  in  duplicate,  when  the  attesting  wit- 

74    Law    T.    455     (will    suitably    re-  nessos    say    that    but    one    copy    was 

executed.    O'Neal!  v.  Farr,  1  Rich.  80. 

498 


CHAP. 


I.]  REVOCATION    OF    WILLS.  §    401 


which  revokes  the  will  revokes  the  codicil  also ;  but  if  the  codicil 
may  from  the  nature  of  its  disposition  stand  readily  by  itself,  its 
validity  remains  unimpaired  by  an  act  which  left  that  instrument 
intact,  while  destroying  the  will.^ 

§  401.  Presumptions,  etc.,  where  Will  is  found  mutilated,  de- 
faced, etc. 

Where  a  will  is  found  torn,  mutilated,  or  defaced  at  the  testa- 
tor's death,  it  is  admissible  to  show  that  this  was  the  result  of  use 
or  accident,  and  not  design  on  his  part ;  *  or  that  it  was  done  by 
some  one  else  without  his  direction  and  presence ;  for  the  vital 
question  is,  whether  the  testator  meant  thereby  to  revoke  or  not. 
And  as  bearing  upon  this  question  the  treatment  of  the  instrument, 
the  place  and  period  of  its  exposure,  the  character  of  the  injury 
suffered,  and  other  circumstances  attending  its  production  after 
the  testator's  death,  may  prove  material  where  direct  evidence  of 
his  intention  is  wanting.^ 

Yet  the  natural  presumption  arises,  where  the  will  remained  in 
the  testator's  custody  until  his  death,  and  then  was  found  defaced, 
mutilated,  or  partially  destroyed,  that  the  act  was  done  by  the 
testator  himself.^     From  the  appearance  of  the  instrument  as  pro- 

7.  Cf.    Tagart    v.    Squire,    I    Curt.  knowledge.      See  also   Fellows   v.   Al- 
289,   and   Coppin   v.   Dillon,   4   Hagg.  len,  60  N.  H.  439,  49  Am.  Dec.  328; 
396;  2  Add.  116,  229;   1  Jarm.  Wills  Blakemore's   Succession  La.    1891. 
139.     And  see  Francis's  Will,  132  N.  1.  Christmas  v.   Whinyates,   3   Sw. 
Y.  S.  695.  &  Tr.  81;   4  Kent  Com.  532;    1  Jarm. 

8.  1  Jarm.  W^ills,   133;    2  No.   Cas.  Wills,  133. 

601 ;    Clarke  v.   Scripps,  2   Rob.   563 ;  Where   a   will   was    found   torn    or 

Giles  V.  W^arren,  L.  R.  2  P.  &  D.  401;  cut   in   two,    in   a   bureau   drawer   of 

Woodward  Re,  L.  R.  3  P.  &  D.  206.  the  testator,  a  place  other  than  that 

9.  See  Lawyer  v.  Smith,  8  Mich.  where  his  valuable  papers  were  usu- 
411,  where  a  will  twenty-five  years  ally  kept,  parol  evidence  of  the  tes- 
old  was  found  in  a  barrel  of  waste  tator's  acts  and  declarations  at  var- 
papers  after  the  testator's  death.  ious  times  between  the  making  of  the 
Throwing  away  a  will  is  not  gener-  will  and  his  death,  was  held  admis- 
ally  a  sufficient  revocation.  But  the  sible  to  show  whether  the  mutilation 
case  may  be  supposed  where  a  tes-  in  question  was  intended  by  way  of 
tator  throws  it  into  the  water  or  the  revoking  his  will.  Patterson  v. 
fire    and    it    is    rescued    without    his  Tlickey,  32  Ga.  156.     See  also  Smock 

499 


§401  LAW    OF    WILLS.  [PAET    IV. 

duced  under  such  circumstances,  however,  active  or  passive  con- 
duct is  inferable,  as  the  case  may  be;  but  positive  and  active  de- 
facement or  destruction  warrants  a  conclusion,  in  the  absence  of 
other  evidence,  that  the  testator  intended  to  revoke;  though 
whether  by  an  act  sufficient  or  insufficient,  statute  construction 
must  determine.^  Where,  however,  the  will  remained  in  a  differ- 
ent custody  and  inaccessible  to  the  testator,  it  may  rather  be  pre- 
sumed that  the  defacement  or  destruction  was  not  done  by  au- 
thority of  ]aw,  that  is  to  say,  by  the  testator  or  in  his  presence  and 
under  his  direction.^ 

But  all  presumptions  of  this  sort  weigh  lightly,  and  they  may 
be  rebutted  by  proof  of  the  actual  facts ;  declarations  and  conduct 
of  the  testator  himself,  the  conduct  and  admissions  of  custodians 
of  the  will,  and  other  material  testimony  aiding  the  investigation 
in  a  given  case.  The  conclusion  results  that  the  testator  fully  in- 
tended to  revoke,  or  else  that  his  intention  wavered  and  was  never 
completely  carried  out,  or  once  more,  that  he  had  no  intention  to 
revoke  at  all ;  and  in  this  last  instance,  accident,  the  testator's  own 
carelessness,  or  the  carelessness  or  fraud  of  some  one  else  may  ac- 
count for  the  ap'pearance  of  the  paper,  and  furnish  to  the  triers  a 
choice  of  inferences.  And  after  all,  a  testator's  full  intention  to 
revoke  by  what  he  does  to  the  instrument  may  be  thwarted  by  the 
insufficiency  of  his  own  act ;  and  his  intention  may  have  been  to 
revoke  in  part  only  or  alter  the  will  by  a  warranted  or  unwar- 

V.  Smock,  11  N.  J.  Eq.  156;   47  Ohio  See  Bell  v.   Fothcrnfill,   L.  R.   2   P.   & 

St.  323,  21   Am.  St.  Rep.  820,  25  N.  D.   148,  where  revocation   in  act  and 

E.    209;    Cutler   v.    Cutler,    40    S.    E.  intent   was    presumed,    notwithstand- 

689,    139   N.    C.    1;    29    So.    98    (Ala.  ing    the    testator    appeared    to    have 

1900)  ;   Safe  Deposit  Co.  v.  Thom,  83  stuck  the  signature  on  again  in  place. 

A.  45,  117  Md.   154.  The  onus  of  making  out  that   the 

2.  Swinb.  pt.  7,  §  16,  pi.  5;  1  Wms.  cancellation   of   a   will   was   the    last 

Exrs.    157;    1    Cas.    temp.    Lee,    444:  act  of  the  testator  himself  lies  upon 

T/nmhell     v.     Lambell,    3    Hagg.    698;  those  who  oppose  the  will.     Hitching 

Baptist  Church  v.  Robbarts,  2  Penn.  v.  Wood,  2  Moore  P.  C.  355;   1  Wms. 

St.   110.     P'rom  the  sufficient  act  the  Exrs.   159. 

law    further    presumes   the   intention.  3.  Bennett   v.    Sherrod,    3    Ired.    L. 

1  Wins.  Exrs.  147,  157;   3  Hagg.  568.  303. 

.^.00 


CTTAP.    I.] 


EEVOCATION    OF    WILLS. 


402 


ranted  exercise  of  discretion  under  the  local  statute,  as  the  case 
may  be.* 

§  402.  Presumption,  etc.,  where  Will  cannot  be  found. 

So,  too,  where  it  is  proved  that  a  will  was  made  and  the  testator 
retained  custody  of  it  or  had  ready  access  to  it,  the  presumption 
arises,  if  the  will  cannot  be  found  after  his  death,  that  he  destroyed 
it  with  the  intention  of  revoking  it;  though  such  a  presumption 
may  be  overthrown  by  circumstantial  or  other  proof  to  the  con- 
tary.^  "Where,  however,  another  person  was  the  custodian  of  the 
will,  and  the  testator  had  not  ready  access  to  it,  there  appears  no 
such  presumption ;  ^  nor  where  the  testator  was  insane  for  the  in- 


4.  As  to  mere  obliterations  and  in- 
terlineations appearing  on  the  face 
of  a  will,  and  nothing  to  explain 
them,  it  is  presumed  that  they  were 
made  after  the  will  was  executed; 
and  so,  too,  with  mutilations.  See 
next  c;  also  1  Jarm.  Wills,  143,  144; 
Cooper  V.  Bockett,  4  Moore  P.  C. 
419;  Greville  v.  Tyler,  7  ib.  320;  Bur- 
goyne  v.  Showier,  1  Rob.  5. 

5.  1  Wms.  Exrs.  157,  and  cases 
cited;  2  Phillim.  23;  3  Phillim.  126. 
L.  R.  1  P.  &  D.  381,  309,  371;  Lillie 
V.  Lillie,  3  Hagg.  184;  1  Curt.  289: 
Finch  V.  Finch,  L.  R.  1  P.  &  D,  371; 
Weeks  v.  McBeth,  14  Ala.  474;  South- 
worth  V.  Adams,  11  Biss.  C.  C.  256; 
Minkler  v.  Minkler,  14  Vt.  125 ;  Ham- 
mersley  v.  Lockman,  2  Demarest,  524; 
Foster's  Appeal,  87  Penn.  St.  67,  30 
Am.  Rep.  340;  177  Penn.  St.  218,  35 
A.  558;  Mercer  v.  Mackin,  14  Bush. 
434;  Schultz  v.  Schultz,  35  N.  Y.  653; 
Brown  v.  Brown,  10  Yerg.  84 ;  Davis 
V.  Sigourney,  8  Met.  487;  .Johnson's 
Will,  40  Conn.  587;  98  N.  C.  135,  3 
S.  E.  719;  Cheever  v.  North,  106 
Mich.  390,  58  Am.  St.  Rep.  499.  37 
L.  R.  A.  561,  64  N.  W.  455;  Boyle  v. 


Boyle,  158  111.  228,  42  N.  E.  140.  So 
if  a  will  was  executed  in  duplicate, 
and  the  part  which  the  testator  re- 
tained cannot  be  found  after  his 
death,  the  presumption  is  that  he 
destroyed  it  animo  revocandi.  2 
Phillim.  23 ;  Calvin  v.  Fraser,  2  Hagg. 
266;  supra,  §§  283,  399..  The  mere 
fact  that  the  will  was  in  existence  a 
short  time  before  the  testator's 
death  does  not  overcome  the  presump- 
tion that,  having  the  opportunity,  the 
testator  revoked  it  by  destruction. 
Collyer  v.  Collyer,  110  N.  Y.  481,  6 
Am.   St.  Rep.  405,  IS  N.  E.  110. 

6.  Schultz  V.  Schultz,  35  N.  Y. 
653,  91  Am.  Dec.  88.  The  custodian's 
explanation  may  help  clear  the  issue. 
See  10  N.  J.  Eq.  196;  Behrens  v. 
Behrens,  44  Ohio  St.  323,  21  Am.  St. 
Rep.  820,  25  N.  E.  209. 

A  will  duly  executed  and  found 
after  the  testator's  death  may  be  ad- 
mitted to  probate  where  the  contents 
of  a  later  will  which  cannot  be  found 
are  not  shown.  Cunnion's  Will,  94 
N.  E.  648,  201  N.  Y.  126;  Williams 
V.  Miles,  127  N.  W.  904,  87  Neb.  455; 
§   412,   post. 


501 


403 


LAW    OF    WILLS. 


[part    IV. 


tervening  period  until  he  died.'^  If  a  will  last  traced  to  the  tes- 
tator's custody  cannot  be  found  at  his  death,  the  presumption  that 
he  destroyed  it  for  the  purpose  of  revocation  outweighs  the  proba- 
bility of  its  fraudulent  and  criminal  destruction  by  another,  when 
unsupported  by  any  evidence  except  that  of  oppoi'tunity,^  though 
this  latter  circumstance  is  always  worthy  of  consideration  with 
other  proof.  And  where  it  is  shown  that  the  testator  had  been 
aware,  while  alive,  that  his  will  was  lost  when  in  his  own  custody, 
and  yet,  with  ample  opportunity,  made  no  attempt  whatever  to 
reproduce  or  republish  its  contents,  a  court  may  fairly  assume  that 
he  in  reality  revoked  it.^ 

A  sufficient  act  of  revocation  with  sufficient  intent  being  dis- 
proved or  not  presumable,  the  contents  of  the  destroyed  or  miss- 
ing will  may  be  established  upon  secondary  proof  of  its  contents ; 
as  by  draft,  copy,  or  the  testimony  of  the  scrivener  who  wrote  it, 
or  other  sufficient  parol  proof.^  If  the  destruction  of  the  will  was 
procured  by  the  compulsion  or  fraud  of  some  third  person,  satis- 
factory proof,  oral  if  need  be,  should  also  be  furnished.^ 


7.  Sprigge  v.  Sprigge,  L.  R.  1  P. 
&  D.  608,  177  Penn.  St.  218,  35  A. 
558. 

8.  Bauskett  v.  Kelt,  22  S.  C.  187; 
Collyer  v.  Collyer,  110  N.  Y.  481, 
C   Am.    St.   Rep.   405,    18   N.   E.    110. 

For  an  exhaustive  historical  dis- 
sertation upon  the  jurisdiction  of 
probate  courts,  unless  forbidden  by 
statute,  to  admit  upon  proof  a  lost, 
suppres.sed  or  destroyed  will,  see 
Dower  v.  Seeds,  28  W.  Va.  113,  57 
Am.  Rep.  646.  Chancery,  by  a  bill 
suitably  brought,  has  e.vercised  a 
similar  jurisdiction.  lb.  See  fur- 
ther, 15  P.  D.  170;  Brookie  v.  Port- 
wood,  84  Ky.  259,  1  S.  W.  637. 

9.  Deave-s's  E.state,  140  Penn.  St. 
242,   21   A.    395. 

1.  3  Sw.  &  Tr.  449;  Burls  v.  Burls, 
L.   R.   1  P.  &  D.  472;    1    P.  &    L).  431, 


1  Phillim.  149;  Sugden  v.  Lord  St. 
Leonards,  1  P.  D.  154;  Ford  v.  Tea- 
gle,  62  Ind.  6. 

2.  1  Wms.  Exrs.  158 ;  Foster  v.  Fos- 
ter, 1  Add.  462;  Podmore  v.  WTiat- 
ton,  3  Sw.  &  Tr.  449;  Card  v.  Grin- 
man,  5  Conn.  164;  Burns  v.  Burns, 
4  S.  &  R.  294.  Statutes  are  found  es- 
tablishing the  method  of  proving  a 
lost  or  missing  will,  and  containing 
various  other  provisions  as  to  the 
procedure.  See  Mosely  v.  Carr,  70 
Ga.  333;  4  Dem.  53.  If  the  testimony 
varies  materially  upon  the  essential 
features  of  the  disposition,  the  will 
cannot  be  proved.  6  Abb.  N.  Cas. 
(N.  Y.)  234.  According  to  Sugden 
V.  Lord  St.  Leonards,  1  P.  D.  154, 
probate  may  be  granted  of  so  much 
of  the  will  as  the  evidence  ascertains, 
thougli   the   other   part    be   not   asccr- 


502 


CHAP.    I.] 


EEVOCATIOIS:    OF    WILLS. 


§  403 


§  403.  Declarations  of  the  Testator  in  issues  of  Revocation. 

As  bearing  upon  the  issue  of  revocation  or  no  revocation  by- 
means  of  an  act  done  to  the  instrument,  accompanying  declarations 
of  the  testator,  either  verbal  or  written,  may  be  shown  at  the 
probate,  as  part  of  the  surrounding  circumstances  evincing  this 
intent.^  And  so  toa,  where  the  effect  of  doubtful  acts  of  revoca- 
tion is  to  be  established.*  But  when  the  act  done  constitutes  no 
legal  revocation  at  all,  his  declarations  of  intent  are  superfluous 
and  inadmissible.^  If  the  will  be  lost  or  missing,  after  the  testa- 
tor's death,  his  oral  or  written  declarations  are  held  admissible  not 
only  for  rebutting  any  presumption  that  he  had  revoked  the  will 
during  his  life,  but  also  as  tending  to  show  by  secondary  proof, 
what  were  its  contents.®     But  some  of  the  latest  decisions  tend  to 


tained.  See  Vol.  II,  Schoul.  Exrs. 
§  1084 ;  Bcatty  v.  Clegg,  73  N.  E.  383, 
214  III.  34.  See  also  Apperson  v. 
Dowdy,  82  Va.  776,  1  S.  E.  105.  But 
cf.  Woodward  v.  Goulstone,  17  App. 
Cas.  469,  which  seriously  questions 
whether  probate  of  a  residuary  be- 
quest alone  ought  to  be  granted,  unless 
the  court  feels  satisfied  that  it  com- 
prehends the  whole  testamentary  pur- 
pose of  the  deceased. 

The  contents  of  a  lost  will  should 
be  fairly  proved.  66  Cal.  487,  6  P. 
326.  But  not  "  beyond  a  reasonable 
doubt."  82  Ala.  352.  One  witness 
or  less  than  the  attesting  number 
may  establish  it.  82  Ala.  352,  2  So. 
110;  118  111.  576,  59  Am.  Rep.  375, 
8  N.  E.  852.  But  such  a  will  should 
not  be  probated  upon  mere  agreement 
of  counsel.  6  Dem  (N.  Y.)  31.  Nor 
upon  mere  hearsay  and  the  declara- 
tions of  the  decedent.  50  Neb.  290. 
38  L.  R.  A.  433,  69  N.  W.  843.  As 
to  proving  a  revoc>ation  of  former 
wills  by  a  later  will,  which  is  lost 
or  destroyed,  and  whose  contents  can- 
not be  proved  other  than  the  revoca- 


tory clause,  see  Cunningham  Re,  38 
Minn.  169,  8  Am.  St.  Rep.  650,  36 
N.   W.  269,   and  cases  cited. 

3.  Evans's  Appeal.  58  Penn.  St. 
238. 

4.  Patterson  v.  Hickey,  32  Ga. 
156;  Collagan  v.  Burns,  57  Me.  446, 
99  Am.  Dec.  782;  8  Mich.  441,  77 
Am.  Dec.  460;  Pickens  v.  Davis,  134 
Mass.  252,  45  Am.  Rep.  322.  See 
Mackenzie's  Estate  (1909),  P.  305 
( probate  allowed  of  a  will  found 
torn  up,  where  testator  had  often 
spoken   of   will   as    in   force) . 

5.  Gay  v.  Gay,  60  Iowa,  415;  Har- 
groves  v.  Redd,  43  Ga.  142;  34  Barb. 
140;  Taylor  v.  Pegram,  151  111.  106, 
37  N.  E.  837,  46  Am.  Rep.  78,  14 
N.  VV.  238;  Jackson  v.  KniflFen,  2 
Johns.  31,  3  Am.  Dec.  390;  Hoitt  v. 
Hoitt,  63  N.  H.  475,  56  Am.  Rep. 
530,  3  A.  604. 

6.  Sugden  v.  St.  Leonards,  1  P.  D. 
154;  Keen  v.  Keen,  L.  R.  3  P.  &  D. 
105;  6  P.  D.  1;  Johnson's  Will.  40 
Conn.  587;  Lawyer  v.  Smith,  8  Mich. 
411,  77  Am.  Dec.  460;  Patterson  v. 
Hickey,  32  Ga.  156;  Pickens  v.  Davis, 


503 


§   404 


LAW    OF    WILLS. 


[PAPwT    IV. 


restrain  this  latter  principle,  particularly  where  the  testator's  al- 
leged declaration  would  thus  constitute  the  sole  proof.'' 

In  cases  which  involve  the  issue  not  of  express  revocation  such 
as  we  have  described,  but  of  implied  revocation,  by  inference  of 
law, —  as  in  the  case  of  remarriage  or  other  change  of  circum- 
stances —  the  weight  of  authority  is  against  admitting  the  oral 
declarations  of  the  testator  to  the  point  that  he  did  or  did  not  un- 
derstand his  will  legally  revoked.^ 

§  404.  Revocation  by  Subsequent  Will  or  Codicil. 

iSTow  as  to  the  revocation  of  a  will  by  a  subsequent  will  or  ai 
codicil.  So  long  as  the  disposer  of  property  lives  and  enjoys  tes- 
tamentary capacity,  he  may  make  his  will  as  often  as  he  likes. 
But,  as  Swinburne  remarks,  "  no  man  can  die  with  two  testaments, 
and  therefore  the  last  and  newest  is  of  force;"  '  by  which  we  are  to 
understand  that  the  latest  will  or  codicil,  duly  executed,  repeals 


134  Mass.  252,  258.  Cf.  Collagan  v. 
Burns,  57  Me.  440,  where  the  court 
was  equally  divided.  45  Am.  Rep. 
322;  Steinke's  Will,  95  Wis.  121,  70 
N.  W.  61;  117  Cal.  288,  59  Am.  St. 
Eep.  179,  40  P.  192;  Boyle  v.  Boyle, 
158  111.  228,  42  N.  E.  140;  McDonald 
V.  McDonald,  142  Ind.  55,  41  N.  E. 
336;  Jackson  v.  Hewlett,  77  N.  E. 
518,  114  Va.  573;  Gumtow  v.  Janke, 
143  N.  W.  616,  177  Mich.  574. 

7.  The  House  of  Lords  in  1886  dis- 
credited Sudgen  v.  Lord  St.  Leonards, 
supra.  See  Woodward  v.  Goulstone, 
11  App.  Cas.  469,  where  a  will  was 
lost,  and  nothing  was  offered  in  proof 
of  its  contents  but  the  post-testamen- 
tary declarations  of  the  testator  con- 
cerning its  contents.  This  evidence 
was  hold  insuflicient,  and  some  doubts 
were  expressed  as  to  whether  such 
evidence  could  be  admitted  at  all. 
See,  also,  Atkinson  v.  Morris  (1897), 
P.  40.  Tlif  case  is  an  extreme  one; 
and  out  of  indulgence  to  the  difficult 


stress  which  a  lost  or  missing  will 
occasions,  it  seems  fair  that  the  tes- 
tator's declarations  should  be  ad- 
mitted, as  corroborative,  at  least,  of 
other  proof,  for  the  purpose  stated  in 
our   text. 

8.  Hoitt  V.  Hoitt,  63  N.  H.  475, 
56  Am.  Rep.  530,  3  A.  604,  with  nu- 
merous citations;  also  §  424  post.  As 
to  the  burden  of  proving  revocation, 
where  a  will  with  cancellations,  etc., 
is  presented  for  probate,  see  Olm- 
sted's Estate,  122  Cal.  224,  54  P. 
745.  See  further,  as  to  lost  or  miss- 
ing wills,  158  S.  W.  1080  (Ark.)  ; 
Sheldon  Re,  144  N.  Y.  S.  94 ;  Rhoads's 
Estate,  88  A.  71,  241  Penn.  38;  Cole 
v.  McClure,  102  N.  E.  264,  88  Ohio 
St.  1.  And  see  Schoul.  Exrs.  & 
Admrs.    (Vol.   II)    §   1084. 

9.  Swinb.  pt.  7,  §  14,  pi.  1. 

A  parol  declaration  concerning  land 
is  revoked  by  a  devise  of  it.  Kelly 
V.  Johnson,  34  Mo.  400. 


504 


CHAP.  I.]  KEvocATio:jr  of  wills.  §  405- 

all  former  wills  which  dispose  of  the  estate  differently,  though 
all  should  happen  to  be  preserved.  The  last  will  excludes  per  se 
every  former  disposition  of  a  contrary  or  inconsistent  nature, 
without  requiring  that  the  instrument  annulled  be  destroyed  as 
prudence  dictates. 

So  long  as  the  law  permitted  wills  of  personal  property  to  be 
executed  without  the  solemnities  pronounced  necessary  for  devises 
of  land,  the  subsequent  disposition  might  be  less  formal  than  that 
which  it  superseded.^  But  as  legislation,  English  and  American, 
commonly  prescribes  at  this  day,  the  later  will,  whether  embrncing 
real  or  personal  property  or  both,  must  be  signed  and  attested  with 
all  tlie  solemnities  of  the  local  statute,  in  order  to  revoke  a  former 
will,  or  indeed  to  operate  at  all.^ 

§  405.  Subsequent  Will  does  not  revoke  unless  duly  executed. 

Of  revoking  clauses  in  a  will,  as  well  as  of  instruments,  not 
wills,  which  may  revoke  because  of  their  express  tenor,  we  shall 
speak  presently.  But  apart  from  such  revoking  clauses,  an  in- 
strument which  purports  to  be  a  will  cannot  as  such  revoke  a  prior 

1.  8ui>ra,  §§  252,  253;  1  Cas.  temp.  Estate,   130  N.   Y.   187    (a  "codicil," 
Lee,  472.  beiirr  an  addition,  depends  for  its  life 

2.  Supra,  §§  252,  253.  The  Statute  and  force  upon  the  existence  of  the 
of  Victoria  has  abolished  in  England  will.  In  Oldroy  v.  Harvey  (1907) 
all  distinctions  between  wills  of  real  P.  326,  the  form  and  position  of  an 
or  personal  property  in  respect  of  re-  added  codicil  is  considered, 
vocation.  There  must  be  "  another  A  specific  legacy  is  not  revoked  by 
will  or  codicil  executed  in  manner  a  codicil  bequeathing  additional  lega- 
hereinbefore  required"  (i.  e.,  by  sig-  cies.  Hamilton  v.  Hamilton,  134  N. 
nature  and  attestation  in  presence  of  Y.  S.  645. 

two  witnesses  at  one  time)  to  operate  Under    the    Statute     of     Frauds    a 

revocation  in  whole  or  in  part.    Act  slight    difference    in    ceremonial    be- 

1  Vict.  c.  26,  §  20.  And  see  language  tween    a   devising   and    revoking   will 

of  the  various  American  codes  on  this  is  made  in  the  phraseology;   but  the 

point;  their  general  policy  being  that  difference  has  proved  of  no  practical 

a  revoking  will   or   writing  must    be  consequence,   for   the   subsequent  will 

executed  and  attested  like  any  other  usually  aims  to  devise  as  well  as  to 

will.  See  also  144  Mo.  119,  46  S.  W.  revoke.      1    Jarm.    Wills.     167,     168, 

139;    151   Ala.   536,  44   So.   389;    135  commenting  upon  29  Car.  II.  §§  6,  22.. 
Iowa,   131,    112   N.   W.    210;    Nokes's 

505 


§     4:06 


LAW    OF    WILLS. 


[PAKT    IV. 


existing  will,  under  our  modern  codes,  unless  properly  signed  and 
witnessed,  though  it  should  profess  to  dispose  of  the  property  dif- 
ferently.^ If  it  revoke  at  all,  it  must  be  as  some  other  writing 
within  the  statute,  for  it  is  neither  will  nor  codicil. 


§  406.  If  Subsequent  Will  dispose  inconsistently,  it  is  enough. 

A  new  will  or  codicil  which  is  duly  executed  by  signature  and 
attestation  as  the  statute  requires,  operates  to  revoke  a  former  will 
wholly  or  in  part,  as  the  ca^  may  be,  by  simply  disposing  of  the 
estate  in  an  inconsistent  maimer;  and  no  express  words  of  revoca- 
tion are  necessary.*  Yet  an  express  revoking  clause  is  to  be 
reeommended  for  insertion  in  all  wills,  so  as  not  to  leave  the 
makei*'s  intent  to  doubtful  inference  and  litigation.^  The  later 
will  which  thus  revokes  should  be  perfect  in  form  and  execution ; 
but  its  operation  or  non-operation  from  causes  dehors  the  instru- 
ment would  not  affect  the  question.^  It  must  have  been  made 
freely  and  rationally  like  any  will.^ 


3.  Reese  v.  Court  of  Probate,  9  R. 
I.  434;  Nelson  v.  Public  Admr.,  2 
Bradf.  (N.  Y.)  210;  15  Penn.  St. 
281,  53  Am.  Dec.  597;  Heise  v.  Heise, 
31  Penn.  St.  246;  Taylor  v.  Taylor, 
2  Nott.  &  M.  482;  3  MacArth.  153; 
Boylan  v.   Meeker,   2   Dutch.   274. 

Formerly,  a  finished  will  of  per- 
sonalty might  be  revoked  in  extreme 
cases  by  an  unfinished  one.  1  Wms. 
Exrs.  168;  2  Phillim.  51.  But  this 
is  inconsistent  with  the  general 
policy  if  our  modern  legislation. 

For  the  rule  of  probate  procedure, 
■where  a  will  has  been  regularly 
proved,  and  a  later  one  is  afterwards 
produced  which  does  not  revoke  the 
former  in  terms,  see  Besancon  v. 
Brownson,   39  Mich.  388. 

4.  Fisher  Re,  4  Wis.  254;  Burden's 
Estate,  11  Phila.  130;  Ludlum  v. 
Oti?.  15  linn  (N.  Y.)  410;  .Johns 
Hopkins    Univ.    v.    Pinckncy,    55    !Md. 


365;  6  Dem.  (X.  Y.)  289;  Bobb's 
Succession,  42  La.  Ann.  40,  7  So.  60; 
122  Ind.  134,  17  Am.  St.  Rep.  349; 
Teacle's  Estate,  153  Penn.  St.  219, 
25  A.  1135;  Cadell  v.  Wilcocks 
(1898)  P.  21;  Bryan's  Estate  (1907) 
P.    125. 

5.  See   §  417,  post. 

6.  Snowhill  v.  Snowhill,  23  N.  J. 
L.  447;  Reade  v.  Manning,  30  Miss. 
308.  Thus,  a  new  will  may  fail  of  its 
purpose  because  the  party  for  whose 
benefit  it  is  made  proves  incapable  of 
taking  under  it;  yet  it  may  be  set  up 
as  a  revocation  of  the  former  incon- 
sistent will.  Laughton  v.  Atkins,  1 
Pick.  535.  And  see  91  P.  929,  40  Col. 
332  (widow  electing  against  provis- 
ions) ;  Dudley  v.  Gates,  125  Mich. 
440,  83  N.  W.  97;  Russell  v.  Hartlcj', 
78  A.  320,  83  Conn.  654.  Revocation 
by  a  later  will  is  good  even  thongh 
tlie    earlier    will    disposes    of   all    tlie 


;0G 


CHAP.    I.]  EEVOCATION    OF    WILLS.  §    407 

§  407.  But  Later  Will  does  not  revoke  unless  inconsistent. 

On  the  other  hand,  the  later  will,  though  well  executed,  does  not 
revoke  the  earlier  one,  as  such  and  without  express  words  of  revo- 
cation, except  by  being  inconsistent  with  it.  And  by  the  extent 
of  such  inconsistency  must  be  measured  the  extent  of  the  revoca- 
tion. To  operate  a  total  revocation  in  such  a  case,  the  two  dis- 
positions must  be  so  plainly  inconsistent  as  to  be  incapable  of 
standing  together.^  Only  revocation  pro  tanto  results  where  the 
effect  is  that  of  partial  inconsistency ;  it  is  like  making  a  will  and 
then  adding  a  codicil ;  the  final  disposition  reading  by  the  light  of 
both  instruments  together  as  a  corrected  whole.^  For  any  number 
of  testamentary  instruments,  executed  at  different  times,  may 
constitute  one's  "  last  will  "  in  legal  effect,  as  construed  together. 

But  a  later  will  has  sometimes,  by  rather  a  forced  construction, 
been  held  to  repeal  the  former  totally  by  implication,  where  the 
court  can  pronounce  it  as  intended  for  a  new,  independent  and 
final  disposition.  The  decisions  in  point  are,  however,  of  doubtful 
authority;  and  the  judges  who  made  them  appear  to  have  laid 
hold  of  doubtful  words  and  expressions  in  the  later  wills,  as  im- 
porting more  clearly  than  the  language  warranted,  that  the  testa- 
tor meant  thereby  to  revoke  in  toto}     A  true  will,  which  revokes 

estate   and   the   later    one   of    a   part  799;    1    Atl.    Rep.    845;    Johns    Hop- 
only.     Bryan's  Estate    (1907)    P.  125.  kins   University  v.   Pinckney,    55   ]\Id. 

7.  O'Neall  v.   Farr,   1   Rich.   80.  365;    Smith   v.   McChesney,   15   N.   J. 

8.  1  Wms.  Exrs.  162,  correcting  the  Eq.  359;  Teacle's  Estate,  153  Penn. 
language  of  Swinburne  (cited  supra,  St.  219,  25  A.  1135;  Pillsbury's  Will, 
§  404)  that  '-no  man  can  die  with  79  N.  E.-  1114,  186  N.  Y.  545;  Gard- 
two  testaments."  ner  v.   McNeal,   82   A.   988,    117   Md. 

9.  Mastermun  v.  Maberly,  2  Hagg.  27;  Miller  v.  Buchanan,  75  S.  E.  773, 
235;    Stoddart  v.  Grant,   1  Macq.   H.  114  Va.  76. 

L.  163;   Lemage  v.  Goodhan,  L.   R.   1  1.  These  cases  are  cited  in  1  Wms. 

P.  &  D.  57;   Hellier  v.  Hellier,  9   P.      Exrs.    163,    164.      Thus,   in   Plenty   v. 


D.  237;  Laughton  v.  Atkins,  1  Pick 
535,  543;  Floyd  v.  Floyd,  7  B.  M'on 
290;  Brant  v.  Wilson,  8  Cow.  56 
Larrabee  v.  Larrabee,  28  Vt.  274 
Fleming  v.  Fleming,  63  N.  C.  209 
Price   V.    Maxwell.    28    Penn.    St.    23 


West,  1  Rob.  264,  the  subsequent  will 
disposed  of  only  part  of  the  testator'.^ 
personal  estate.  But  Sir  H.  J.  Fust 
relied  greatly  upon  language  therein 
which  described  the  paper  as  "  my 
last  will."     And  see  Outto  v.  Gilbert, 


Scott  V.  Fink,  45  Mich.  241,  7  N.  W.      18  Jur.  560.     But  in  many  instances 

507 


§  407 


LAW    OF    WILLS. 


[PAKT    IV. 


completely  all  one's  former  wills  by  inference,  is  properly  executed 
and  described  as  a  substantive  will  and  not  a  codicil. 

According  to  the  better  rule,  therefore,  where  revocation  is 
simply  implied  from  a  subsequent  will,  inconsistent  in  terms,  the 
revocation  will  be  limited  to  such  terms  as  are  plainly  inconsistent; 
and  where  a  devise  or  bequest  in  the  former  will  is  clear  and  free 
from  doubt,  the  intention  to  revoke  it  by  the  latter  should  be 
equally  explicit."  The  governing  principle  in  all  such  cases  i» 
the  testator's  apparent  intention.  And  one's  intention  in  making 
a  new  will  may  have  been  to  dispose  of  other  property  or  make 
new  provisions  perfectly  consistent  with  the  former;  or  else  to 
thereby  revoke  pro  tanto  by  amendment ;  it  does  not  follow  that  a 
full  revocation  was  intended.^     If  the  subsequent    will    substan- 


a  paper  described  as  one's  "  last  will 
and  testament "  is  probated  as  an  ad- 
dition to  a  former  will,  out  of  a 
broader  regard  to  the  testator's  in- 
tention. 1  Wms.  Exrs.  163,  notes; 
5  Notes  Cas.  183,  512;  Lemage  v. 
Goodban,  L.  R.  1  P.  &  D.  57.  Hellier 
V.  Hellier,  9  P.  D.  237,  harmonizes 
the  probate  and  temporal  courts  on 
this  point.  See  also  Simpson  v. 
Faxon  (1907)  P.  54  ("the  last  and 
only  will "). 

The  appointment  or  non-appoint- 
ment of  new  executors  has  little  real 
bearing  on  such  issues.  1  Wms.  164, 
criticising  Plenty  v.  West,  supra; 
Henfrey  v.  Henfrey,  2  Curt.  468;  4 
Moore  P.  C.  29;  Richards  v.  Queen's 
Proctor,  18  Jur.  540;  Brown  Re,  1 
13.  Mon.  56;  Bailey  Re,  L.  R.  1  P.  & 
D.  628.  Yet  some  of  the  earlier  cases 
in  the  ecclesiastical  courts  seem  to 
have  YGparded  the  .sulwequent  ap- 
pointment of  a  new  executor  by  will 
jiH  an  implied  revocation.  1  Phillim. 
412,  and  cases  citwl. 

On  the  other  hand,  where  a  codicil 


entirely  revokes  the  will  except  as 
to  the  appointment  of  executors,  the 
will  remains  pro  tanto  valid,  and 
both  instruments  require  probate 
Newcomb  v.  Webster,  113  N.  Y.  191, 
21  N.  E.  77. 

2.  Masterman  v.  Maberley,  and 
other  cases,  supra. 

3.  The  cases  sometimes  turn  upon 
a  very  nice  construction  of  phrases 
which  are  supposed  to  indicate 
what  the  testator  intended.  Thus, 
a  legacy  "  in  lieu  "  of  a  former  pro- 
vision may  be  held  to  revoke  such 
provision.  Brownell  v.  De  Wolf,  3 
Mason,  456.  So,  too,  in  a  bequest 
to  tenants  in  common,  a  distinction 
in  effect  is  taken  between  the  revoca- 
tion of  a  gift  and  of  so  much  of  the 
will  as  contains  the  gift.  See  1  Jarm. 
W^ills.  170;  Harris  v.  Davis,  1  Coll. 
416;  Sykes  V.  Sykes,  L.  R.  4  Eq.  200; 
Rife's  Appeal,  110  Penn.  St.  232,  1 
A.  226.  In  Gordon  v.  Whitlock,  63 
Va.  723,  24  S.  E.  342,  the  will  was 
minutely  and  carefully  drawn,  while 
the     revoking     instrument     produced 


;o8 


CIIAP.    I.]  KEVOCATION    OF    WILLS.  §    409 

tially  disclaims  any  intention  to  revoke,  still  less  should  revocation 
ensue. 


§  408.  Intention  to  revoke  must  be  Immediate,  and  not  Pro- 
spective or  Dependent. 

The  intention  to  revoke  implied  in  a  will  must  be  immediate, 
-and  not  prospective  or  dependent,  in  order  to  take  effect.  Thus,  a 
will  confined  to  other  property,  which  intimates  an  intention  to  re- 
dispose  of  what  the  first  will  bequeathed,  by  a  codicil  to  be  here- 
after made,  constitutes  no  present  revocation  of  the  first  will. 
And  the  license  formerly  granted  to  wills  of  personalty  informally 
executed,  whereby  one's  mere  instructions  for  a  subsequent  will 
might  in  an  extreme  case  operate  ipso  facto  to  revoke  an  earlier 
on©,^  is  discountenanced  by  the  policy  of  modem  codes. 

A  doctrine  has  sometimes  been  set  out  of  dependent  revocations, 
favorable  to  the  inference  that  the  revocation  of  an  existing  will 
was  intended  to  depend  upon  the  efficacious  substitute  of  a  new 
and  different  one ;  and  hence  that  unless  the  new  disposition  took 
effect  upon  a  due  drawing  up  and  execution,  the  old  revocation 
might  fail  also.  But  this  is  a  dangerous  doctrine  to  be  advanced 
upon  any  circumstantial  proof;  and  a  testator  should  guard  his 
own  intention  carefully  in  this  respect;  for  if  he  once  cancels  by 
appropriate  act  the  cancellation  takes  full  effect.® 


§  409.  Inclination  against  Revocation;  Use  of  a  Codicil. 

The  courts  incline  to  so  construe  doubtful  cases  as  to  presei-ve, 
wholly  or  in  part,  the  contents  of  the  prior  will  rather  than  pro- 
nounce for  a  total  revocation  by  inference.     Where,  for  instance, 

was   holographic,  contained  no  clause  5.  1  Wms.  Exrs.  161 ;   1  Cas.  temp, 

of    revosation    and    disposed    of    only  Lee,   509;    Helyar   v.   Helyar,   1   Phil- 

a  very  small  part  of  the  estate.  lim.  430;   §  381,  supra. 

4.   Thomas   v.   Evans.   2   East   488;  6.   See  Olmsted's   Estate,    122    Cal. 

1    .Tarm.    171.      Cf.    Brown   v.   Thorn-  224.    54    P.    745;    Williams    v.    Wil- 

dike,   15  Pick.  388.  liams,  142  Mass.  515,  8  N".  E.  424. 

509 


§    409  LAW    OF    WILLS.  [PART    IV» 

the  later  will  only  disposes  of  a  portion  of  the  estate,  they  avoid 
the  ill  consequence  of  partial  intestacy ;  ^  and  where  the  later  paper 
is  styled  a  codicil,  they  take  this  to  mean  that  the  intent  was  to 
amend  and  not  repeal ;  ^  and  in  either  case  the  fomier  will  is 
treated  as  no  more  than  pro  tanto  revoked.  In  other  cases,  per- 
haps, the  context  may  justify  a  similar  construction.  But  if  the 
later  will  does  not  profess  to  be  a  codicil  at  all,  and  disposes  more- 
over of  the  entire  estate  inconsistently  with  the  earlier,  a  court 
would  violate  its  duty  not  to  hold  that  the  earlier  will  was  wholly 
revoked,  unless  the  context  supplied  good  reason  for  supposing 
that  rhe  testator  otherwise  intended.^ 

The  intention  to  revoke  may  be  collected  from  informal  expres- 
■  sions,  though  not  from  ambiguous  ones.^  And  in  case  of  doubt, 
provisions  by  a  later  will  appear  to  be  presumed  additional  and 
cumulative,  rather  than  intended  as  a  substitute  and  by  way  of 
revocation.^  Even  where  the  literal  construction  of  a  codicil 
might  favor  the  conclusion  of  a  more  sweeping  revocation,  a  less 
sweeping  one  will  be  inferred  if  a  fair  comparison  of  will  and 
codicil  in  all  their  provisions  justifies  the  conclusion;  for  no  dis- 
turbance of  the  former  existing  will  is  to  operate  from  the  later  one 
other  than  necessity  justifies.^ 

7.  Freeman  v.   Freeman,  Kay,  479.  does    not   operate   as   a  total   revoca- 

8.  Howard  Re,  L.  R.  1  P.  &  D.  tion.  Gelbke  v.  Gelbke,  88  Ala. 
630.  The  usual  office  of  a  codicil  is  427,  6  So.  843.  A  codicil  re- 
to  vary  or  amend  a  previous  will,  vokes  only  so  far  as  it  is  clearly  in- 
and  not  to  repeal  it.  8upra,  §  7;  consistent  with  the  former  will.  Lov- 
riext  c.  ering    v.    Balch,    96    N.    E.    142,    210 

9.  1  Jarm.  Wills,  175;  Henfrey  v.  Mass.  105;  Vestal  v.  Garrett,  64  X. 
Henfrey,  2  Curt.  468;  4  Moore  P.  C.  E.  345,  197  111.  398  (unless  expressly 
29.  revoking)  ;   Osburn  v.  Trust  Co.,   131 

1.  Of.  Gordon  v.  HofTman,  7  Sim.  N.  Y.  S.  859;  Blakeman  v.  Sears,  51 
29;  Pilcher  v.  Hole,  7  Sim.  208;  1  A.  517,  74  Conn.  516;  92  N.  E.  533; 
Jarm.  182.  245  111.  622;   77  A.  321,  113  Md.  127. 

2.  1  Wms.  Exrs.  167.  A   codicil   may   be   revoked   intontion- 

3.  Reichard's  Appeal,  116  Penn.  St.  ally  without  affecting  the  will.  Os- 
232,  9  A.  311;  Thomas  v.  Levering,  burn  v.  Trust  Co.,  102  N.  E.  571, 
73  Md.  451,  21  A.  367.  209   N.   Y.   54,   46   L.   R.   A.    (N.   S.) 

Ambiguous    language    in    a    codicil      983. 

510 


CHAP.    I.]  EEVOCATIOJS"    OF    WILLS.  §    410 

§  410.  Revocation  by  Subsequent  Will  under  a  False  Assump- 
tion of  Facts. 

Wlaere  a  testator  revokes  his  existina;  will,  through  some  false  or 
mistaken  assumption  of  facts,  which  is  discoverable  from  the  face 
of  the  papers,  the  revocation  does  not  tako  effect.  As  if  one  should 
by  a  later  will  repoal  legacies  given  bv  an  earlier  one  to  his  grand- 
children, "  they  being  all  dead,"  when  in  fact  they  are  living ;  * 
or  should  confer  benefits  upon  one  described  as  husband  or  wife, 
who  turns  out  not  to  be  legally  a  spouse  by  reason  of  some  prior 
and  existing  marriage;  ^  or  should  treat  the  gift  as  made  to  A  in 
the  original  will  when  it  was  made  to  B.*^  This  rule  regards  the 
testator's  intent  and  the  impulse  which  moved  him  to  dispose  as 
he  did ;  and  courts  treat  the  revocation  accordingly  as  a  sort  of 
contingent  or  conditional  one,  whose  condition  or  contingency  has 
failed ;  '  the  intent  being  deficient,  as  in  other  cases  of  fundamen- 
tal mistake.  Where  no  mistaken  assumption  appears,  but  a  tes- 
tamentary purpose  founded  upon  some  recognized  doubt  or  ac- 
companied by  a  mere  misdescription  of  the  person,  or  stating 
grounds  of  whose  falsity  or  truth  the  testator  judged  for  himself, 
this  rule  does  not  apply.^ 

Such  a  non-revocation,  we  may  add,  cannot  be  set  up  by  show- 
in  mistakes  hot  discoverable  from  the  face  of  the  testamentary 
papers ;  and  it  is  held  that  not  only  the  mistake  must  be  thus  ap- 
parent, but  what  the  will  of  the  testator  would  have  been  except 
for  the  mistake.^  The  failure  of  the  revocation  to  take  effect, 
however,  appears  the  same,  whether  the  new  will  with  its  false 
assumption  revoked  expressly  or  only  by  implication.^ 

4.  Campbell  v.  French,  3  Ves.  321;  8.  See  1  Jarra.  Wills,  183,  citing- 
Crossthwaite  v.  Dean,  L.  R.  5  Eq.  10  Ad.  &  El.  228;  Hayes  v.  Hayes, 
245.  21  N.  J.  Eq.  265;   Rkipwith  v.  Cabell, 

5.  Kennell   v.   Abbott,   4   Ves.   802;  19  Gratt.  758. 

Doe  V.  Evans,  10  Ad.  &  El.  228.  9.   Gifford  v.  Dyer,   2   R.   I.   99,   57 

6.  Barclay  v.  Ma-skelyne,    1    Johns.      Am.  Dec.  708. 

(Eng.)    124.  1.   See  Campbell  v.   French,   3  Ves. 

7.  1  Wms.  Exrs.  173,  174;   1  Jarm.      321. 
183. 

511 


§    412  LAW    OF    WILLS.  [PAKT    IV. 

§  411.  Two  Wills  of  the  Same  Date,  etc. 

T\%ere  two  contradictory  wills  are  found  bearing  the  same  date, 
or  without  an}^  date  at  all,  and  nothing  can  be  shown  to  establish 
relationship  or  priority  in  one  or  the  other,  both  must  be  treated 
as  void,  and  intestacy  is  the  harsh  result.^  But  the  court  avoids 
this  conclusion  if  possible,  by  collecting  some  consistent  scheme  of 
disposition  from  both  papers,  or  determining  their  true  sequence.' 
And  it  should  be  borne  in  mind  that  two  papers,  duly  executed, 
may  have  the  substantial  force  of  a  single  testamentary  disposi- 
tion.* 

Where  duplicate  wills  are  executed  on  the  same  day,  the  execu- 
tion of  the  second  operates  no  revocation  of  the  first;  for  the  ap- 
parent intention  is,  that  both  shall  constitute  one  and  the  same 
will.^  Even  where  one  has  executed  a  later  will,  wrongly  sup- 
posing it  to  be  an  exact  copy  of  his  former  one,  while  in  fact  it 
omitted  certain  essential  parts,  no  revocation  of  those  parts  occurs, 
but  both  instruments  are  together  entitled  to  probate,*^  Yet  express 
revocation  by  a  new  will  may  take  place,  when  so  intended,  at  a 
later  hour  of  the  same  day  when  the  old  one  was  executed.^ 

§  412.  When  Revoking  Will  cannot  be  found;  Proof  of  Revoca- 
tion, etc. 

The  execution  of  a  subsequent  will  of  different  tenor  operates 
to  revoke  a  former  one  notwithstanding  the  later  will  be  lost  or 
mislaid,  or  at  least  cannot  be  found  at  the  testator's  death.^  Even 
supposing  the  second  will  destroyed  by  the  testator  with  the  in- 
tention of  revoking  it,  he  may  have  meant  to  die  intestate.* 

2.  Phipps  V.  Anglesea,  7  Bro.  P.  C.  6.   Rirks  v.   Birks,   34   L.   J.   90. 
43.  6a..  Head  v.  Nixon,  128  P.   557,  22 

3.  1    Jarm.    Wills,    175;      1   Wins.      Idaho,  765. 

Exrs.    166.      See   Townsend  v.   Moore  7.    Legare    v.    Ashe,     1     Bay,     464. 

(1005)   P.  66.  Here    parol    evidence    of    contents    is 

4.  §§  280,  399.  admissible  within  the  rule  laid  down, 

5.  Odenwaelder   v.    Schorr,     8    Mo.      supra,  §   402. 

App.  458.     It  is  not  necessary  to  pro-  8.  Brown  v.  Brown.  8  El.  &  Bl.  876. 

du.'!e   both   papers   for   probate   where  But   see   §    413,   post,   as   to   reviving 

a  will  is  executed  in  duplicate.  Cross-  a  former  will  by  cancelling  the  later 

mail  V.  Crossman,  95  N.  Y.  145.  one. 

512 


CHAP.    I.]  EE VOCATION    OF    WILLS.  §    413 

But  where  a  will  which  cannot  be  produced  is  relied  upon  as 
revoking  by  implication  a  foi-mer  one,  its  contents  should  bo 
clearly  established.^  And  the  mere  fact  that  a  later  will  was  made, 
by  no  means  justifies  the  inference  that  it  revoked  in  effect  with- 
out proof  of  its  actual  contents.^  The  English  temporal  courts 
appear  to  have  insisted  upon  this  doctrine  more  strenuously  than, 
the  spiritual  tribunals ;  ^  but  on  the  whole  it  has  been  well  estab- 
lished, though  not  without  a  struggle,  that  unless  the  tenor  of  a 
later  and  missing  will  can  be  ascertained,  by  clear  secondary  evi- 
dence of  its  contents,  revocation  of  the  earlier  one  which  still  exists 
uncancelled  is  not  to  be  inferred  when  proof  of  such  revocation  is 
wanting.^ 

§  413.  Whether  the  Revocation  of  a  Later  Will  can  revive  an 
Earlier  One. 

But  supposing  the  contents  of  a  later  will  sufficiently  estab- 
lished, the  question  has  long  been  discussed  in  courts,  English  and 
American,  whether  the  revocation  of  such  later  will  can  per  se 
revive  an  earlier  one  which  remains  uncancelled.  The  conclusion 
has  been  variously  announced,  and  the  fundamental  difficulty  ap- 
pears to  consist  in  trying  to  spread  a  net  which  shall  catch  the  tes- 
tator's intention  each  time  without  moving. 

The  English  common  law  tribunals  laid  down   a  rule,  under 

9.  1  Wins.  Exrs.  162;  Cutto  v.  Gil-  St.  Rep.  499,  37  L.  R.  A.  561,  64  N. 

bert,  9  Moore  P.  C.  131;   Colligan  v.  W.    455;    Kern   v.    Kern,     55    N.     E. 

McKernan,     2     Dera.      (N.    Y.)    421;  1004,    154    Ind.    29;    Cunnion's    Will, 

South  worth  v.  Adams,  11  Biss.  C.  C.  94   IST.   E.   648,   201   N.   Y.   126;    Wil- 

256.  Hams    v.    Miles,    127    N.    W.    904,     87 

1.  Hitchins  v.  Bassett,  3  Mod.  203;  Neb.   455. 

1   Show.   537,  affirmed  in   Shaw.  Cas.  3.  1  Wms.  Exrs.  166;    cases  supra. 

Pari.  146.  Where  it  was  known  that  the  second 

2.  Cf.  Cutto  V.  Gilbert,  18  Jur.  560,  will  disposed  diflTerently,  but  in  what 
reversed  in  9  Moore  P.  C.  131;  Free-  particulars  unknown,  or  merely  that 
man  v.  Freeman,  5  De  G.  M.  &  G.  it  was  styled  "  last  will,"  this  does 
704.  And  see  Nelson  v.  McGiffert,  not  establish  a  revocation.  lb.;  Good- 
3  Barb.  Ch.  158;  Peck's  Appeal,  30  right  v.  Harwood,  Cowp.  87,  7  Bro. 
Conn.    562,    47   Am.    Pop.    685;    Chee-  P.  C.  344. 

ver  v.  North,  106  Mich.  390,  58  Am. 

33  513 


g    413  LAW    OF    WILLS.  [PAET    IV.^ 

Lord  ^Mansfield's  lead,  which  has  been  thought  more  inflexible  than 
that  favored  by  ecclesiastical  courts:  viz.,  to  the  effect,  that  if  a 
testator  keeps  his  first  will  iindestroyed  and  uncancelled,  makes 
a  second  will  virtually  or  expressly  revoking  it,  and  then  destroys 
or  cancels  the  second  will  only,  thus  repealing  its  revocation,  the 
first  will  thereupon  revives  and  continues  in  force.^  But  the  ec- 
clesiastical courts  announce  that  in  all  such  cases  the  testator's  in- 
tention should  be  the  guide.  "  The  legal  presumption,"  as  Sir 
John  Xicholl  declares,  "  is  neither  adverse  to,  nor  in  favor  of,  the 
revival  of  a  former,  concancelled,  upon  the  cancellation  of  a  later 
revocatory  will.  Having  furnished  this  principle,  the  law  with- 
draws altogether,  and  leaves  the  question,  as  one  of  intention 
purely,  and  open  to  a  decision  either  way,  solely  according  to  facts 
and  circumstances."  ^  Even  the  common  law  courts  have  ques- 
tioned the  broadn^s  of  the  rule  as  Lord  Mansfield  first  laid  it 
down ;  ®  and  indeed,  it  is  possible  that  the  eminent  judge  has  not 
been  accurately  reported ;  ^  while  Sir  John  ]S[icholl,  on  the  other 
hand,  though  professing  that  the  law  was  unsettled  in  his  day,  gave 
a  cautious  preference  to  presuming  against  the  revival  of  the  for- 
mer will  rather  than  in  favor  of  it.^ 

There  is  a  distinction  well  taken  in  such  cases  (which  Lord 
M'ansfield  may,  if  misreported,  have  had  in  view,  though  he 
probably  had  it  not)  ;  namely,  as  between  a  later  cancelled  will 
which  was  merely  inconsistent  with  the  former  one,  and  one  which. 

4.  Lord  Mansfield  in  Harvvood  v.  Mr.  Williams  disposes  of  this  contro- 
Goodright,  1  Cowp.  91;  Goodright  v.  versy  (which  relates  to  Goodright  v. 
Glazier,   4   Burr.   2512.  Glazier)   by  quoting  Lord  Mansfield's 

5.  Usticke  v.  Bawden,  2  Add.  125.  language  in  Harvvood  v.  Goodright, 
And  see  Moore  v.  Moore,   1   Phillim.  supra. 

412.  8.    Wilson     v.     Wilson,    3    Phillim. 

6.  Moore  v.  Moore,  1  Phillim.  419,  554;  1  Hagg.  326.  But  parol  evidence 
■where  Justice  Abbott  and  Baron  of  the  actual  circumstances  is  freely 
Richards  appear  to  question  Lord  admitted  to  turn  the  force  of  any 
Mansfield's  opinion;  1  Wms.  Exrs.  /presumption.  lb  ;  Welsh  v.  Phil- 
ITU,  lips,    1    Moore    P.    C.    209;    1    Wms.. 

7.  See  note  to  Burr.  2513,  3d   Ed.,  Exr8.    180. 
cited  by  1  Wms.  Exrs.  178,  note.  But 

514 


CHAP.    1.]  KEVOCATION    OF    WILLS.  §    414 

contained  a  clause  expressly  revoking  it.  Where  tbe  one  will  was 
expressly  revoked  by  the  other,  it  seems  fairly  presumable  that  the 
immediate  absolute  and  unequivocal  revocation  in  writing  remains 
unaffected  by  equivocal  acts  of  parol  touching  the  later  instru- 
ment ;  or,  in  other  words,  that  if  the  subsequent  will  expressly  re- 
voke the  prior  one,  a  simple  cancellation  of  the  latter  cannot  set  up 
the  former  one  again. ^  But  some  good  authorities  have  questioned 
the  soundness  of  such  a  distinction ;  ^  though  as  affecting,  at  least, 
the  strength  of  the  bias  or  presumption  against  revival,  it  see^m-S 
an  important  one,  even  though  controlling  evidence  of  actual  in- 
tent cannot  be  shut  out. 


§  414.  The  Same  Subject:    Present  English  Rule. 

In  this  discrepancy  of  authorities,  the  statute  1  Vict.  c.  26, 
undertook,  in  18>37,  to  establish  a  rule  for  the  future.  Under  §  22 
of  this  enactment  it  is  provided  that  no  will  or  codicil,  or  any  part 
thereof,  which  shall  be  in  any  manner  revoked,  shall  be  revived 
otherwise  than  by  the  re-execution  thereof,  or  by  a  codicil  exe- 
cuted as  required  by  the  act,  and  showing  an  intention  to  revive 
the  same.^  This  puts  an  end  in  England  to  all  discussions  of  ob- 
scure intent  on  this  point,  and  brings  the  courts  of  that  country 
upon  harmonious  ground  such  as  they  never  occupied  before.  Since 
this  enactment  operated,  the  uniform  rule  has  been  that  after  the 
execution  of  a  subsequent  will  which  contains  an  express  revoca- 
tion, or  which  by  reason  of  inconsistent  provisions  amounts  to  an 
implied  revocation  of  the  former  will,  such  former  will  cannot  be 
revived  by  the  simple  cancellation  or  destruction  of  the  later  will.^ 
No  strict  distinction  is  here  preserved  between  an  express  or  an 
implied  revocation  of  the  earlier  will  by  the  later  one;  yet  the 

9.    1   Powell   Dev.    (Ed.   1827)    537,  3.  Major  v.  Williams,  3  Curt.  432; 

528.  Brown   v.    Brown,    8    El.   &    Bl.    876; 

1.  Jarman's  note,  ib.   529,  cited   in  Dickinson  v.  Swatman,   30  L.   J.    (X. 
134   Mass.   254.  S.)    84;    Wood  v.   Wood,   L.   R.   1   P. 

2.  Act   1  Vict.  c.  26,   §   22;   Appen-  &   D.    309. 
dix,  post. 

515 


§  415 


LAW    OF    WILLS. 


[part   IV. 


former  mode  of  revocation  best  relieves  the  abstract  question  of 
difficulty.* 

§  415.  The  Same  Subject:  American  Rule. 

In  the  United  States,  a  like  discrepancy  of  opinion  is  found  in 
the  several  States  whose  courts  have  considered  the  subject;  and 
legislation  in  many  localities  resolves  the  dispute  substantially  as 
the  English  Statute  of  Victoria  has  done.^  The  policy  of  these 
enactments  being  that  an  earlier  will  once  revoked  ought  not  to  be 
revived  by  the  cancellation  of  a  later  will,  we  may  consider  Lord 
Mansfield's  theory  as  in  the  main  disapproved.  For  even  in  States 
whose  courts  are  left  without  suck  guidance,  we  fijid  that,  on  the 
whole,  the  ecclesiastical  is  preferred  to  the  common-law  doctrine. 
Particularly  is  that  doctrine  asserted,  where  the  later  will  which 
became  revoked  contained  an  express  clause  of  revocation ;  ^  and 
numerous  decisions  are  put  expressly  on  the  ground  that  the  later 
will  revoked  thus,  and  not  by  mere  implication ;  ^  yet  leaving  no 


4.  1  Wms.  Exrs.  181.  In  Hodgkin- 
son's  Goods  (1893)  P.  339,  the  sub- 
sequent cancellation  of  a  second  will 
was  held  not  to  revive  the  revoked 
part  of  the  first  will. 

5.  Whenever  legislation  has  dealt 
with  this  subject,  in  the  several 
States,  it  appears  to  have  been 
thought  best  to  provide  against  con- 
structive revival  of  an  earlier  will  by 
cancellation  of  the  later  one.  New 
York,  Ohio,  Indiana,  Missouri,  Ken- 
tuckj',  California,  Arkansas  and  Vir- 
ginia are  among  the  States  where 
such  enactments  have  prevailed.  See 
4  Kent  Com.  532;  134  Mass.  256,  45 
Am.  Rep.  322,  per  Allen,  J.;  Rudisill 
V.  Rodcs,  29  Gratt.  147;  Beaumont 
v.  Keim,  50  Mc.  28;  108  Cal.  688,  41 
P.    771. 

6.  James  v.  Marvin,  3  Conn.  576 
Simmons  v.  Simmons,  26  Barb.  68 
Colvin  V    Warford,  20  Md.  357,  391 


.51 


Harwell  v.  Lively,  30  Ga.  315,  76  Am. 
Dec.  649;  Bohanon  v.  Walcot,  1  How. 
(Miss.)  336,  29  Am.  Dec.  631;  Scott 
V.  Fink,  45  Mich.  241;  Pickens  v. 
Davis,  134  Mass.  252,  45  Am.  Rep. 
322;  Moore's  Will,  65  A.  447,  72  N. 
J.  Eq.  371;  2  Dall.  266,  286,  390; 
Flintham  v.  Bradford,  10  Penn.  St. 
82. 

7.  Scott  V.  Fink  and  Colvin  v.  War- 
ford,  sxipra.  In  Scott  v.  Fink  the 
distinction  is  stated  at  length,  and 
reference  is  made  to  tlie  fact  that  an 
express  revocation  operated  at  once 
and  unequivocally  without  being  a 
needful  ingredient  of  the  will.  But 
as  to  the  implied  revocation  which 
results  from  the  inconsistency  of  the 
second  will  with  the  first  there  are 
prevalent  theories  in  the  courts  wliich 
interfere  with  its  immediate  opera- 
tion. The  only  chance  for  the  second 
will  here  to  operate  was  by  its  com- 

G 


CHAP.    I.] 


KEVOCATION    OF    WILLS. 


415 


positive  assurance  that  this  distinction  will  be  rigidly  pursued. 
If,  therefore,  a  will  which  was  duly  executed,  and  which  contained 
a  clause  expressly  revoking  all  former  wills,  be  cancelled  or  de- 
stroyed, the  preponderance  of  American  opinion  is  that  the  former 
■will  is  not  thereby  revived,  in  default  at  all  events,  of  affirmative 
evidence  that  the  testator  so  intended.*  But  in  the  absence  of  stat- 
ute direction,  the  courts  ti-eat  the  question  of  revival  as  one  of  in- 
tent, to  be  gathered  from  all  the  circumstances.^ 


ing  to  a  head  as  an  active  will,  which 
it  could  do  only  by  surviving  its 
maker.  "  Being  the  last  expression 
of  the  decedent  and  at  the  same  time 
practically  inconsistent  with  the 
prior  one,  the  intent  to  repeal  the 
first  by  it  was  to  be  implied.  In  case, 
however,  of  its  being  recalled  by  the 
testator  in  his  lifetime,  it  could  not, 
on  the  theory  referred  to,  be  taken 
to  have  the  eflf'ect  to  do  away  with  its 
predecessor."  45  Mich.  241.  See  also 
Cheever  v.  North,  106  Mich.  391, 
58  Am.  St.  Rep.  499,  37  L.  R. 
A.  561,  64  N.  W.  455.  This 
isame  difetinction  is  expressed  in 
Peck's  Appeal,  50  Conn.  562,  47  Am. 
Rep.  685,  and  semble  enforced  by  com- 
parison with  James  v.  Marvin,  3 
Conn.  576.  This  rather  fanciful  idea 
is  derived  from  Lord  Mansfield  in 
Goodright  v.  Glazier,  4  Burr.  2512. 
But  in  that  same  English  case,  Mr. 
Justice  Yates  puts  the  principle  thus: 
The  first  will  revives  or  holds  good, 
because  the  revocation  of  it  by  the 
second  will  was  itself  revocable,  and 
the  testator  has  revoked  the  revoca- 
tion by  cancelling  the  second  will. 
Ooodright  v.  Glazier,  ib.  And  see 
Bates  V.  Hacking,  58  A.  622,  28  R.  I. 
523 ;  Stetson  v.  Stetson,  66  N.  E.  262, 
200  111.  601,  61  L.  R.  A.  258  (stat- 
ute) ;   Blaekett  v.  Ziegler,  133  N.  W. 


901,  153  Iowa,  344  (no  revival  im- 
plied )  ;  Osburn  v.  Rochester  Trust 
Co.,  131  N.  Y.  S.  859  (destroying  a 
codicil  which  contained  only  a  speci- 
fic  legacy). 

8.  Pickens  v.  Davis,  134  Mass.  252, 
and  cases  cited.  Oral  declarations 
made  after  cancelling  the  later  will 
are  admissible  to  show  whether  the 
testator  meant  thereby  to  revive  his 
earlier  and  still  uncancelled  one.  Ib. ; 
§  403;  Hawes  v.  Nicholas,  72  Tex. 
481. 

9.  In  Colvin  v.  Warford,  20  Md. 
357,  391,  the  court  appears  to  have 
held  that  the  cancellation  of  a  revok- 
ing will  is  prima  facie  evidence  of  an 
intention  to  revive  the  previous  will, 
but  the  presumption  may  be  rebutted 
by  evidence  of  the  attending  circum- 
stances and  probable  motives  of  the 
testator.  The  rule  of  the  English 
ecclesiastical  courts  points,  however, 
the  other  way,  as  our  text  indicates, 
or  else  to  a  non-presumption.  See  1 
Wms.  Exrs.  179.  The  intention  to 
revive  the  first  will  when  cancelling 
the  second,  is  indeed  open  to  proof, 
and  even  to  oral  proof;  but  the  bare 
fact  that  the  first  will  was  not  de- 
stroyed, while  the  second  was,  aff"ords 
no  sufficient  proof,  especially  if  the 
s.econd  will  contained  a  clause  of  ex- 
press   revocation. 


517 


§  415 


LAW    OF    WILLS. 


[part  IV. 


On  the  other  hand,  there  are  a  few  States  in  which  Lord  Mans- 
field's rule  has  been  upheld;  so  that  the  earlier  will  revives  upon 
cancellation  of  the  later  one.^ 


"  The  clause  of  revocation,"  ob- 
serves Allen,  J.,  in  a  learned  exposi- 
tion of  this  subject,  '"  is  not  neces- 
sarily testamentary  in  its  character. 
It  might  as  well  be  executed  as  a 
separate  instrument.  The  fact  that 
it  is  inserted  in  a  will  does  not  nec- 
essarily show  that  the  testator  in- 
tended that  it  should  be  dependent  on 
the  continuance  in  force  of  all  the 
other  provisions  by  which  his  prop- 
erty is  disposed  of.  It  is  more  rea- 
sonable and  natural  to  assume  that 
such  revocatory  clause  shows  em- 
phatically and  conclusively  that  he 
has  abandoned  his  former  intentions, 
and  substituted  therefor  a  new  dis- 
position of  his  property,  which  for 
the  present,  and  unless  again  modi- 
fied, shall  stand  as  representing  his 
wishes  upon  the  subject.  But  when 
the  new  plan  is  in  its  turn  aban- 
doned, and  such  abandonment  is 
shown  by  a  cancellation  of  the  later 
will,  it  by  no  means  follows  that  his 
mind  reverts  to  the  original  scheme. 
In  point  of  fact,  we  believe  that  this 
would  comparatively  seldom  be  found 
to  be  true.  It  is  only  by  an  artifi- 
cial presumption,  created  originally 
for  the  purpose  of  preventing  intes- 
tacy, tliat  such  a  rule  of  law  has  ever 
been  held.  It  does  not  correctly  rep- 
resent the  actual  operation  of  the 
minds  of  testators  in  the  majority 
of  instances.  Tlie  wisdom  which  has 
come  from  experience  in  England  and 
in  this  country,  seems  to  point  the 
other  way."     134  Mass.   2r,€,. 

But  actual  intent  controls,  if  clear. 
Whvre   a   testator   executes   a   second 


will,  supposing  at  the  time  that  the 
first  will  was  lost,  and  he  subse- 
quently finds  the  first  and  destroys 
the  second,  declaring  that  he  prefers 
the  first,  these  circumstances  estab- 
lish his  intention.  Marsh  v.  Marsh, 
3  Jones  L.  77,  64  Am.  Dec.  598. 
Where  one  destroys  his  later  will 
with  the  distinct  purpose  of  making 
another  one,  this  does  not  revive  an 
earlier  one  found  among  his  papers, 
no  third  will,  in  fact,  having  been 
made.  McClure  v.  McClure,  86  Tenn. 
173,   6   S.  W.  44. 

And  if  a  testator  after  holding 
three  wills  in  suspense,  each  contain- 
ing its  revoking  clause,  and  each 
properly  executed,  decides  to  keep  the 
second  and  destroy  the  other  two,  and 
acts  accordingly,  the  second  will 
should  be  admitted  to  probate.  Wil- 
liams V.  Williams,  142  Mass.  515, 
8  N.  E.  424. 

1.  Taylor  v.  Taylor.  2  Xott  &  McC. 
482;  Randall  v.  Beatty,  31  N.  J. 
Eq.  643  (case  of  express  revocation). 
As  to  second  wills  not  expressly  re- 
voking, tins  doctrine  finds  approval 
in  Peck's  Appeal.  50  Conn.  662, 
supra,  which  construes  a  local  stat- 
ute. 

See  further  upon  this  subject  of 
controversy,  Danley  v.  Jefferson,  150 
Mich.  590,  114  N  W.  470  (intent  of 
testator  to  revive  disregarded)  : 
Noon's  Will,  91  N.  W.  670,  115  Wis. 
299,  95  Am.  St.  Rep.  944;  Gould's 
Will,  47  A.  1082,  72  Vt.  316;  Kern  v. 
Kern,  55  N.  E.  1004,  154  Ind.  29; 
Lane  v.  Hill,  44  A.  393,  68  N.  H.  275, 
73  Am.  St.  Rep.  591. 


518 


CHAP.    I.]  KEVOCATION    OF    WILLS.  §    417 

§  416.  Reference  of  Codicil  to  Either  of  Two  Wills. 

Although  a  later  and  inconsistent  will  repeals  a  prior  one  with- 
out a  revoking  clause,  it  does  not  preclude  a  testator  by  appropriate 
writing  from  reinstating  the  former  one  in  a  contingency.  Thus, 
where  the  testator  has  preserved  two  such  wills,  he  may  make  a 
still  later  codicil,  while  uncertain  which  of  these  two  ought  to  take 
effect  as  his  will,  meaning  such  codicil,  however,  to  attach  to  the 
earlier  will  in  one  alternative  and  to  the  later  one  in  the  other; 
and  supposing  the  codicil  to  express  this  intention  clearly  and 
properly,  no  artificial  rules  of  revocation  can  deprive  the  intention 
of  legal  effect.^     A  revocation  may  be  conditional  or  dependent' 

§  417.  Express  Revocation  by  Later  Will,  etc. 

We  are  now  brought  to  consider  the  express  revocation  of  an 
earlier  will  by  words  or  a  clause  contained  in  the  later  one.  This, 
as  already  shown,  furnishes  a  more  prompt  and  positive  mode  of 
repealing  than  simply  to  provide  differently  by  the  new  will  and 
trust  to  inferences.  Indeed,  no  well-drawn  testament  omits  at 
the  present  day  a  clause  of  revocation  in  such  a  case,  whether  ex- 
pressed so  as  absolutely  to  revoke  all  wills  made  by  the  testator  at 
any  former  time,  or  in  a  partial  sense,  as  where  a  codicil  revokes 
the  former  will  so  far  as  inconsistent  therewith,  and  in  other  re- 
spects ratifies  and  confirms  it.*  Words  and  clauses  of  express  re- 
vocation operate  according  to  their  obvious  tenor,  and  strengthen  the 
proof  disclosed  by  inconsistent  provisions  contained  in  the  new 
will. 

As  a  rule,  a  general  clause  of  revocation  contained  in  the  later 
will  operates  as  expressed,  namely,  so  as  to  revoke  all  prior  testa- 
mentary acts  of  the  testator.^  But  if  the  later  will  appears  on 
its  face  to  have  subserved  some  purpose  which  fails,  or  to  have 

2.  Bradish  v.  McClellan,  100  Penn.  5.  In  an  extreme  case  this  effect 
St   607.  appears   to   have   been   restrained    by 

3.  71  N.  E.  384,  210  111.  404;  next  proof  that  the  testator  had  not  in- 
section;  Williams  v.  Williams,  142  tended  it  to  apply  to  a  particular 
Mass.   515.  paper.     1  Wms.  Exrs.  16,  186. 

4.  See  forms   in  Appendix,  post. 

519 


§    418  LAW    OF    WILLS.  [part    IV. 

proceeded  upon  a  false  assumption  of  facts,  the  new  disposition 
failing,  the  expi-ess  revocation  is  carried  down  with  it,  on  the 
theory  that  the  testator  intended  the  vocation  clause  as  an  in- 
gredient of  the  new  will  and  not  to  operate  independently  of  it.^ 
So,  too,  a  declaration  of  intention  to  revoke  in  the  future,  or  con- 
tingently, or  with  whatever  shows  a  wavering,  deliberative,  or  un- 
settled purpose  in  the  testator's  mind,  cannot  be  deemed  a  present 
express  revocation.''  And  it  is  laid  down  as  a  canon  of  construc- 
tion that  what  is  once  clearly  given  must  be  clearly  taken  away  or 
cut  down,  in  order  to  be  effectually  taken  away  or  cut  down  at  all.^ 
Whether  an  express  clause  of  revocation  shall  operate  totally  or 
partially,  or  whether  it  is  imperative  or  the  reverse,  is  a  question 
of  construction,  and  often  a  nice  one,  to  be  gathered  from  a  study 
of  all  the  instruments  concerned,  with  a  view  of  discovering  the 
testator's  intention.^ 

§  418.  The  Same  Subject. 

The  effect  of  writings  not  testamentary  whose  purport  is  to  re- 
voke will  presently  appear.  But  in  order  to  make  the  revocation 
clause  operate  which  a  new  will  contains,  the  will  itself  should  be 
properly  executed  according  to  the  statute  requirements ;  ^  and,  of 
course,  it  should  be  the  product  of  a  free  and  rational  mind.^  For 
there  must  exist  not  only  testamentary  capacity  in  such  a  case,  but 
the  testamentary  execution ;  since  a  testator  is  presumed  not  to 

6.  Onions    v.    Tyrer,    7    Ves.  379;  273,     35     S.     W.     936;    Bradhurst   v. 
Campbell    v.    French,     3     Ves.  321;  Field,  135  N.  Y.  564,  32  N.  E.  113. 
supra,    §   410.  9.    See    next    c;    Cookson   v.    Han- 

7.  Cro.    Jac.    497;    1    Wms.  Exrs.  cock,  2  My.  &  Cr.  606;   Van  Wert  v. 


183;  Thomas  v.  Evans,  2  East,  448 
Brown  v.  Thorndike,  15  Pick.  388 
Semmes  v.  Semmes,  7  Harr.  &  J.  388 
Hamilton's  Estate,   74   Pcnn.   St.   69 


Benedict,  1  Bradf.  114;  Viele  v.  Kee- 
ler,   129  N.  Y.  190,  29  N.  E.   78. 

1.  Laughton  v.  Atkins,  1  Pick.  543 ; 
Nelson  v.  Public  Adnir.  2  Bradf.    (X. 


Rudy   V.  Ulrich,   69   Penn.   St.   177,   8  Y.)   210;   Heise  v.  Heise,  31  Penn.  St. 

Am.    Rep.   238.      But   cf.   Walcott    v.  246. 

Oclitcrlonrr,   ]    Curt.   580.  2.    O'Neall   v.    Farr,     1     Rich.     SO; 

8.  Doe  V.  Hicks,  8  Bing.  479;   1  CI.  Rudy   v.  Ulrich,  69  Penn.   St.   177.   8 

&  F.  20;  Kiver  v.  Oldfield,  4  De  G.  &  Am.   Rep.  238;   Lyon  v.  Dada,  86  N. 

.J.    30;    Bedford   v.    Bedford,    99     Ky.  W.   946,   127  Mich.   395. 

520 


CHAP.    I.]  REVOCATION    OF    WILLS.  §    419 

have  intended  revoking  his  foi*mer  will  except  for  the  purpose  of 
substituting  the  later  one  with  the  clause  in  question. 

If,  however,  the  second  will  be  properly  executed  by  one  of 
suitable  capacity,  the  clause  of  revocation  contained  therein  will 
operate,  even  though  the  second  will  should  fail  of  its  intended 
effect  by  reason  of  the  incapacity  of  the  beneficiary  named  in  it, 
or  any  other  matter  dehors  the  will.^  And  even  though  the  revok- 
ing will  should  make  no  disposition  of  the  property  disposed  of  by 
the  will  revoked,  the  clause  of  revocation  will  have  its  full  effect  * 
On  the  other  hand,  where  the  revoking  will  is  found  to  be  invalid 
on  the  ground  of  fraud  or  undue  influence,  or  of  mental  incapacity, 
the  clause  of  revocation  which  it  contains  cannot  operate  apart.^ 

§  419.  Express  Revocation  by  Other  Writing. 

The  revoking  instrument  above  described  is  executed  as  a  will, 
being  of  a  testamentary  character  and  generally  a  mere  clause  con- 
tained in  the  new  testamentary  disposition.  Such  an  instrument 
requires  probate.®  But  our  wills  acts  recognize  the  right  of  ex- 
press revocation  by  some  other  writing,  not  strictly  testamentary ; 
while  under  the  common  law,  an  unattested  and  even  unsigned 
paper  might  have  been  set  up  to  repeal  a  will,  provided  only  the 
suitable,  free,  and  rational  intent  was  therein  disclosed. 

But  Anglo-Saxon  law  has  long  cherished  the  policy  that  a  tran- 
saction by  solemn  instrument  ought  not  to  be  subverted  by  an  in- 
strument less  solemn.  And,  accordingly,  the  same  Statut-e  of 
Frauds  which  ordained  that  devises  of  land  should  not  be  good 
unless  formally  signed  by  the  testator  and  attested  in  the  presence 
of  three  witnesses,  provided  further  that  devises  should  not  be  re- 

3.   Tupper   v.   Tiipper,   1   Kay  &   J.  4.   Thompson      Re,    11   Paige,   453; 

665;    Price  v.  Maxwell,  28   Penn.   St.  Bayley  v.  Bailey,  5  Cush.  345. 

23;    Hairston    v.    Hairston,    30    Miss.  5.   Rudy   v.   Ulrich,     69     Penn.    St. 

276;   Laughton  v.  Atkins,  supra.  And  177,  8  Am.  Rep.  238;   Rich  v.  Gilkey, 

see    Pringle    v.    McPherson.    2    Brev.  73  Me.  595;   Lyon  v.  Dada,  supra. 

279.     An  express  revocation  will  pre-  6.  Laughton  v.  Atkins,  1  Pick.  535; 

vail,   even    though   the   object   of   the  Rudy  v.  Ulrich,   69  Penn.   St.   177,   8 

new  will  fails  as  being  against  public  Am.  Rep.  238. 
policy.    5  Jones  Eq.  46;   §  410  supra. 

521 


S  420 


I^ATV    OF    WILLS. 


[PAET    IV. 


voked  in  wi'iting  save  under  substantially  the  same  conditions ;  so 
that  whether  by  will  or  some  other  distinct  writing,  the  sigTiature 
and  the  three  witnesses  were  alike  indispensable.''  The  principle 
of  legislation  having  been  early  adopted  in  the  American  colonies, 
we  have  only  to  consider  the  effect  of  revocation  by  informal  writ- 
ing upon  a  testator's  personal  property ;  and  even  here  it  is  Ameri- 
can rather  than  English  precedents  that  we  find  in  point.^ 

§  420.  The  Same  Subject. 

Unlike  the  devise  of  lands,  therefore,  a  will  of  personal  property 
alone  might  be  revoked  by  an  unattested,  or  even  under  circum- 
stances an  unsigned,  writing  which  made  the  intention  clear ;  and 
even  where  a  will  disposed  of  real  and  personal  estate  together,  a 
similar  instrument  would  take  effect  upon  the  gifts  and  bequest  of 
personalty,  though  otherwise  inoperative.^     To  give  this  effect,  no 


7.  Act  29  Car.  II,  c.  3,  §   6. 

This  same  statute,  §  22,  provides 
that  "  no  will  in  writing  concerning 
any  goods  or  chattels  or  personal  es- 
tate shall  be  repealed,  nor  shall  any 
clause,  devise  or  bequest  therein  be 
altered  or  changed  by  any  words,  or 
will  by  word  of  mouth  only,  except 
the  same  be  in  the  life  of  the  testator 
committed  to  writing,  and  after  the 
writing  thereof  read  unto  the  testa- 
tor, and  allowed  by  him,  and  proved 
to  be  so  done  by  three  witnesses  at 
the  least."  See  1  Jarm.  Wills,  167, 
168. 

8.  1  Jarm.  Wills.  167,  168.  The 
provision  of  §  22  of  the  above  state- 
ute  was  not  so  generally  incorporated 
in  American  legislation  as  that  of 
§  C>. 

Wliorc  it  appears  to  have  been  the 
tontator's  intention  tliat  all  after- 
acquired  property  shall  pass  by  his 
will,  hi.s  conveyance  of  all  the  estate 
previously   devised,   by   a   trust   deed. 


not  attested  by  a  sufficient  number  of 
witnesses  to  give  it  a  testamentary 
character,  but  containing  a  power  of 
revocation  which  is  subsequently  ex- 
ercised so  that  the  title  revests  in  the 
testator,  does  not  operate  as  a  revo- 
cation of  the  will;  and  upon  the  re- 
vesting of  the  title  in  the  testator, 
the  estate  is  subject  to  the  will,  as 
before,  and  the  interest  of  the  dev- 
isees exists  as  if  no  conveyance  had 
been  made.  Morey  v.  Hoitt,  63  N. 
H.  507,  3  A.  636,  56  Am.  Rep.  53S; 
63  N.  Y.  S.  544.     And  see  §  427  post. 

9.  Brown  v.  Thorndike,  15  Pick. 
388.     See  §§  252,  253  supra. 

Where  the  local  law  requires  an  ex- 
])ress  revocation  of  real  estate  to  be 
formally  witnessed  like  a  will  but  not 
a  revocation  of  personal  property,  it 
may  liappen  that  the  testator  has  dis- 
posed of  both  real  and  personal  prop- 
erty by  a  will  duly  attested,  and  then 
by  an  unattested  writing  purports  to 
revoke  his  will  utterly.    TIere  tlie  situa- 

22 


CJIIAP, 


I.]  REVOCATION    OF    WILLS.  §    421 


peculiar  fonn  of  words  was  requisite.  The  testator  might  in  some 
couveuient  part,  usually  at  the  foot  of  the  original  will,  write  "  this 
will  is  hereby  cancelled,"  or  "  this  will  is  invalid,"  and  if  he  signed 
it,  so  much  the  better.^  A  single  word  written  on  the  will  which 
manifests  an  intention  to  annul  it,  so  courts  have  ruled,  effects  a 
repeal.^  Partial  revocation,  too,  may  be  manifested  by  writing, 
suitable  words  across  or  against  the  legacy  to  be  cancelled.^  And 
ever}'  paper  in  the  fonn  of  a  will,  but  not  properly  executed  as 
such,  has  been  sometimes  treated  as  sufficient  for  an  express  revo- 
cation, consistently  with  the  local  statute  concerning  devises  of 
land ;  *  though,  properly  speaking,  that  which  fails  as  a  will  from 
imperfect  execution,  ought  not  to  operate  separately  in  its  revok- 
ing clause  when  intended  as  a  will.^ 

§  421.  The  Same  Subject. 

It  is  of  course  well  settled  that  the  declaration  of  an  intent  to  re- 
voke by  some  future  act  amounts  to  no  actual  revocation.®     But  the 

tioii   of  his   property   at  the   time   of  L.   R.  A.   654.     To  write  "  obsolete  " 

such  revocation  is  well  inquired  into,  on    the    margin     of     the     will    is    not 

with  the  aid,  if  need  be,  of  evidence  enough.     2  W.  &  S.  455. 

extrinsic  to  the  will  itself.    For  a  will  For   instances    in   which    a   writing 

refers  to  the  condition  of  one's  prop-  neither    signed  nor  attested  may   re- 

erty  when  it  was  made,  while  a  revo-  voke,   see   Clark  v.  Ehorn,   2   Murph. 

nation  made  long  after  operates  upon  235;     Glasscock    v.    Smither,    1   Call 

the    property     then     to     be    aflfeoted,  479. 

which     may     be     very     different     in  2.    Evans's   Appeal,     58     Penn.     St. 

amount     and     character.      Should     it  238;    1   Dem.    (N.  Y.)    484. 

prove  that  when   the  revocation    was  3.   See  supra,   §   397. 

wrritten  the  testator  no  longer  owned  4.   Clark   v.   Ehorn,   2   Murph.   235 

real  estate,   any  writing  sufficient  to  5.   See  supra,   §   418;     Glasscock  v 

revoke    a    will   of   personal   property  Smither,  i  Call  479;  Laughton  v.  At 

alone  would  revoke  completely.  Brown  kins,     1     Pick.     535,    543;    Heise    v, 

V.  Thorndike,  15  Pick.  388.  Heise,    31    Penn.     St.    246;     Reese   v 

1.  Warner  v.  Warner,  37  Vt.  356;  Court  of  Probate,  9  R.  I.  434;   Stick 

Johnson  v.  Brailsford,  2  Nott  &  McC.  ney  v.   Hammond.   138  Mass.   116. 

272,    10    Am.    Dec.    601;    Semmes    v.  6.  Cro.  Jac.  497;  Thomas  v.  Evans, 

Semmes,  7  Harr.  &  J.  388;   Witter  v.  2  East,  487;   Brown  v.  Thorndike.  15 

Mott,  2  Conn.  67,  66  S.  W.  1127,  108  Pick.   388;   supra.  §  417.  Thus  an  in- 

Tenn.   334,   91   Am.   St.   Rep.   751,   56  dorsement  on  a  will   which   indicates 

523 


§    422  LAW    OF    WILLS.  [PAET    IV. 

terms  of  any  writing  which  imports  a  revocation  should  be  con- 
strued according  to  its  obvious  intent  and  the  subject-matter  rather 
than  the  strict  phraseology  in  which  it  is  couched ;  hence  hypothe- 
tical words  in  such  instruments  may  well  consist*  with  the  idea 
that  a  new  will  is  proposed,  and  yet  that  the  writing  in  question 
shall  operate  notwithstanding  as  an  actual  and  present  revocation 
without  waiting  for  it.^  If  an  instrument  is  to  take  effect  only  on 
the  happening  of  an  event  which  does  not  transpire,  it  cannot  re- 
voke a  will  already  executed  and  existing.^ 

§  422.  The  Same  Subject:   Latest  Legislation. 

But  under  the  latest  legislation,  English  and  American,  these  in- 
formal, unattested  writings  which  purport  to  revoke  are  generally 
abolished.  As  public  opinion  in  both  countries  has  advanced  to 
the  requirement  that  all  wills  without  distinction  of  the  property 
to  which  they  relate  shall  be  regularly  and  uniformly  signed  and 
attested,  so  has  the  disposition  grown  to  admit  of  no  express  revo- 
cation by  writings  less  solemn.  Upon  this  newly  extended  rule  of 
policy  rest  the  modem  Statute  of  Victoria  and  most  local  enact- 
ments in  the  United  States  now  in  force.®     Revocation  under  such 

the  purpose  to  alter  or  modify  it  at  may   not  an   express   revocation   thus 

a  future   day,   is  no  revocation.    Ray  qualified,   and  not   strictly   dependent 

V.  Walton,  1  A.  K.  Marsh  71.  upon   some   future   act   of   revocation, 

7.   Brown    v.     Thorndike,    15   Pick,  be  good?     ,                                    , 

388,  408.    Here  the  testator  wrote  on  8.  Hamilton's  Estate,  74  Penn.   St. 

his  will:  "  It  is  my  intention  at  some  69;  69  Penn.  St.  177,  8  Am.  Rep.  238. 

future  time  to  alter  the  tenor  of  the  See  further,  Bates  v.     Hacking,  28 

above    will,    or    rather    to   make     an-  R.  I.  523;   125  Am.  St.  Rep.  759,  14 

other  will;   therefore,  be  it  known,  if  L.    R.    A.     (N.    S.)    937,    68    A.    622; 

I    should   die   before   another   will     is  Hibbard  v.  Tra.sk,   67  N.  E.  179,  160 

made,  I   desire  that  the  foregoing  be  Ind.   498. 

considered  as  revoked  and  of  no  ef-  9.  See  Act  1  Vict.  c.  26,  §  20;  Ap- 

fect."     This    was    held    to    constitute  pcndix.     Many  American  statutes  re- 

a    present    revocation,    and     not     the  quire  in  such  case  "  some  other  writ- 

dejlaration  of  an  intent  to  revoke  by  ing   signed,    attested,    and    subscribed 

Home  future  act.    But  qu.  was  it  not  in  the  same  manner  that  is  required 

ralFifr   a    revocation   to   operate    con-  in  the   case  of  a  will."     See  Noyes's 

tingf-ntly  or  upon   a  condition   subse-  Will,   61  Vt.   14,   17  A.   743. 
qiiciit   which   took   actual   efl'ect;    and 

524 


CHAP.    I.] 


KEVOCATION    OF    WILLS. 


422 


statutes  maj  b©  by  express  writing  testamentary  or  not  testa- 
mentary; but  in  either  case  and  with  reference  to  real  and  per- 
sonal property  alike,  the  instrument  must  be  executed  with  the 
fonnalities  prescribed  for  a  will ;  it  must  be  signed  by  the  testator 
and  attested  by  a  stated  number  of  witnesses.  The  mere  prepara- 
tion of  a  new  will  because  of  dissatisfaction  with  the  former  one, 
can  under  such  a  policy  operate  no  revocation,  where  the  testator 
died  before  the  new  will  could  be  executed.^ 

A  notable  consequence  of  such  legislation  is,  that  signed  and 
attested  writings  which  expressly  revoke  are  in  some  instances 
wills,  requiring  probate  as  such ;  and  in  others,  writings  which  are 
no  wills,  nor  admissible  to  probate;  the  line  of  distinction,  how- 
ever, being  sometimes  difficult  to  trace.^  Sample  words  of  repeal 
and  cancellation  written  upon  a  will  may  still  have  the  force  of 
an  express  revocation  as  formerly ;  not,  however,  unless  signed  and 
attested  as  the  local  statute  directs.^ 


1.  Voorhis's  Will,  90  N.  Y.  668. 
See  101  N.  W.  144,  125  Iowa,  424; 
Castens  v.  Murray,  50  S.  E.  131,  122 
Ga.  396;  lOO  N.  Y.  S.  344;  77  N.  E. 
446,  221  111.  252;  Bruce  v.  Sieria,  57 
So.  709  (Ala.  code)  ;  Peirce's  Estate, 
115  P.  835,  63  Wash.  437  (incapac- 
ity of  devisee  to  take  not  essential)  ; 
Hoitt  V.  Hoitt,  63  N.  H.  475,  3  A. 
604;  Aldrich  v.  Aldrich,  102  N.  E. 
487,  215  Mass.  164. 

2.  Lord  Penzance  found  this  diffi- 
culty when  construing  1  Vict,  c  26, 
in  its  20th  section.  A  testator  at  the 
foot  of  his  will  wrote  a  memoran- 
dum in  effect:  "This  will  was  can- 
celled this  day,"  and  duly  executed 
it  in  the  presence  of  two  witnesses. 
This,  it  was  held,  was  "  some  writ- 
ing "  under  the  statute,  and  not  en- 
titled to  probate  as  a  will.  Eraser's 
Goods,  L.  R.  2  P.  &  D.  40.  But, 
shortly  before,  Lord  Penzance  had 
dubiously  admitted  to  probate  a  simi- 

52, 


lar  memorandum,  duly  executed  as  a 
will,  which  added  the  words  "  and 
as  yet  I  have  made  no  other  "  [will]. 
Hicks's  Goods,  L.  R.  1  P.  &  D.  683. 
Here  the  memorandum  did  more  than 
to  revoke;  and  his  lordship  distin- 
guished between  (1)  a  will  or  codi- 
cil and  (2)  '"some  writing,"  the  for- 
mer of  which  alone  admitted  of  pro- 
bate. 

See  also  Rudy  v.  Ulrich,  69  Penn. 
St.  177,  8  Am.  Rep.  238,  which  pur- 
sues a  like  distinction;  supra,  §  296. 

3.  Gugel  V.  Vollmar,  1  Dem.  (N. 
Y. )  484.  Here  the  attempt  was  to 
revoke  part  of  the  will.  In  a  late 
English  case,  under  the  Act  of  Vic- 
toria, a  codicil  was  considered  re- 
voked by  erasure  and  a  writing 
signed  by  the  testator  and  two  wit- 
nesses to  the  effect  that  they  had 
witnessed  the  erasure.  Gosling's 
Goods,  11  P.  D.  79.  In  certain  States 
where  holograph  wills  are  favored  au 


§    424  LAW    OF    WILLS.  [PART    IV. 

§  423.  Evidence  under  a  Written  Revocation. 

A  written  revocation,  under  our  usual  local  statutes,  requires 
now  the  same  kind  and  measure  of  evidence  as  the  probate  of  a  will 
requires.*  Parol  evidence  of  an  intention  to  revoke  or  changa 
one's  will  has  been  admitted  in  ca&es  where  the  papers  themselves 
left  the  point  in  doubt.^  And  if  it  be  uncertain  from  the  face  of 
the  instruments  whether  substitution  was  intended  or  something 
additional  by  way  of  gift,  the  testator's  purpose  may  be  cleared  by 
evidence  aliunde.^  But,  in  general,  parol  evidence  of  intent  is  not 
admissible  unless  there  is  such  doubt  and  ambiguity  on  the  face 
of  the  papers  as  requires  extrinsic  evidence  to  explain  them.^ 

§  423a.  Miscellaneous  Instruments  Considered. 

A  will  is  not  revoked,  of  course,  by  a  subsequent  instrument 
which  was  intended  to  confinn  it ;  as  for  example,  by  a  French  do- 
nation inter  vivos,  which  although  adding  in  effect  no  strength  to 
the  testamentary  disposition  was  intended  to  assure  it.^  Nor  does 
a  power  of  attorney  revoke  a  will.^ 

§  424.  Revocation  by  Inference  of  Law;  Effect  of  subsequent 
Marriage. 
Finally,  as  to  revocation  of  a  will  by  inference  of  law.  The 
most  striking  instance  under  this  head  is  afforded  by  the  marriage 
of  the  testator.  If  a  woman  makes  a  will  and  afterwards  marries, 
her  will  is  revoked  by  force  of  the  marriage.  This  has  been  the 
time-honored  rule  of  the  common  law ;  resting  not  upon  mere  pre- 
sumption, but  upon  the  material  change  which  marriage  works  in 

attested  will  not  written  by  the  tes-  7.    Thorne   v.    Rooke,    2    Curt.    799. 

tator    may    be    revoked    by    his    hole-  See  as  to  ambiguities  Part  VI.  post. 

graphic  codicil.     78  Cal.  477,  21  P.  8.  8.   Aubert'a   Appeal,   109    Penn.   St. 

4.  Noyes's   Will,    61   Vt.    14.       Sec  447,   1  A.  336. 

also  Burns  v.  Travis,  117  Ind.  44,  18  9.  89  P.  985,  5  Cal.  App.   161.    Cf. 

N.  E.  4.5.  OfTut     V.     Divine,    21    Ky.    Law   Rep. 

5.  Jenner  v.   Ffinch,  L.  R.   5  P.   D.      loOO,  53  S.  W.  816. 

106.  A    presumed     intention     to     revoke 

6.  Methuen  v.  Methucn,   2   Phillim.      may    be    overcome    by    pertinent    evi- 
410.  dence.     87  A.  577,  240  Penn.  S3. 

526 


CHAP.    I.] 


EEVOCATION    OF    WILLS. 


§  424 


the  circumstances  and  condition  of  every  woman,  and  the  new  in- 
terests she  sustains  by  the  very  act  of  taking  a  husband.^  This 
change  of  condition  was  doubtles^s  greater  under  the  old  rules  of 
coverture  which  placed  the  wife  under  her  husband's  protection, 
disabled  her  from  disposing  by  will  or  contract  without  his  sanc- 
tion, and  cast  her  property  into  a  mould  convenient  for  giving  the 
husband  the  chief  control  if  not  the  ownership ;  ^  yet,  by  the  bet- 
ter opinion  (though  various  States  construe  to  the  contrary),  it 
operates  to  this  very  day,  as  a  legal  revocation,  and  justly  so,  de- 
spite the  new  privileges  with  which  equity  and  modern  legislation 
may  have  seen  fit  to  clothe  her.^     In  truth,  modern  experience  so 


1.  §  46;  4  Co.  60  b;  Doe  v.  Staple, 
2  T.  R.  667,  695;  2  P.  Wms.  624; 
Hodsden  v.  Lloyd,  2  Bro.  C.  C.  544; 
Long  V.  Aldred,  3  Add.  48 ;  Warner 
V.  Beach,  4  Gray,  162;  Carey  Re,  49 
Vt.  236,  34  Am.  Rep.  133. 

2.  Schoul.  Hus.  and  Wife,  §§  86- 
89. 

3.  Brown  v.  Clark,  77  N.  Y.  369; 
Swan  V.  Hammond,  138  Mass.  45, 
52  Am.  Rep.  255;  Blodgett  v.  Moore, 
141  Mass.  75,  5  N.  E.  470;  142  Mass. 
242,  7  N.  E.  720;  66  P.  710,  40  Ore. 
154;  Vandeveer  v.  Higgins,  80  N. 
W.  1043,  59  Neb.  333;  Hiidnall  v. 
Ham,  56  N.  E.  172,  183  111.  486,  75 
Am.  St.  Rep.  124,  48  L.  R.  A.  557. 
It  is  suggested  that  every  will  ought 
to  be  considered  amljulatoiy ;  and 
if  a  woman  cannot  by  law  revoke  or 
make  a  new  will  during  coverture, 
her  former  will  made  as  a  feme  sole 
would  be  irrevocable  unless  the  law 
thus  revoked  it  for  her.  But  this 
argument  does  not  cover  the  whole 
case;  for  the  new  concession  of  tes- 
tamentary favors  to  the  wife  by  mod- 
ern statute  does  not  change  the  rule 
of  the  text.  1  Wms.  Exrs.  192.  In 
fact  the  doctrine  has  a  deep  founda- 


tion  in   public   policy  and  knowledge 
of  human  nature. 

But  in  Rhode  Island  the  marriage 
of  a  feme  sole  testatrix  was  treated 
(contrarj'  to  rule)  as  operating  only 
a  presumptive  revocation  of  her  will. 
Miller  v.  Phillips,  9  R.  I.  141.  And 
in  New  Jersey  and  Illinois  a  woman's 
marriage  was  held  not  to  revoke  her 
previous  will.  Webb  v.  Jones,  36  N. 
J.  Eq.  163;  Tuller  Re,  79  111.  99,  22 
Am.  Rep.  164.  See,  also,  Noyes  v. 
Southworth,  55  Mich.  173,  20  N.  W. 
891;  Fellows  v.  Allen.  60  N.  IT.  439, 
49  Am.  Rep.  328;  Ward's  Will,  70 
Wis.  251,.  5  Am.  St.  Rep.  174.  35  N. 
W.  731;  Hoitt  v.  Hoitt,  63  N.  H.  475, 
56  Am.  Rep.  530,  3  A.  604;  Hunt's 
Will.  81  Me.  275,  17  A.  68;  Roane 
V.  Hollingshead.  76  M'd.  369,  35  Am. 
St.  Rep.  438,  17  L.  R.  A.  592,  25  A. 
307;  Lyon's  Will,  96  Wis.  339,  65 
Am.  St.  Rep.  52,  71  N.  W.  362,  and 
cases  cited;  70  Wis.  251,  5  Am  St. 
Rep.  174,  35  N.  W.  731;  Ellis  v.  Dar- 
den,  86  Ga.  368,  11  L.  R.  A.  51.  12 
S.  E.  652;  Hastings  v.  Day,  130  N. 
W.  134,  151  Iowa,  39.  See,  also,  the 
line  of  argument  pursued  in  Morton 
v    Onion,   45  Vt.   145.     In  Carey  Re, 


527 


§  424 


LAW    OF    WILLS. 


[part   IV. 


justifies  the  doctrine  that  marriage  shall  operate  as  a  revocation, 
if,  at  all  events,  no  antenuptial  arrangement,  no  provision  in  view 
of  the  marriage  has  entered  into  such  a  will,  that,  instead  of  ex- 
empting the  wife,  legislation  now  inclines  to  extend  the  rule  to  the 
husband  by  way  of  equalizing  the  privileges  of  the  sexes.  And 
even  if  there  be  an  antenuptial  assent  by  one  spouse  to  the  other'3 
will,  this  ought  not  of  itself  to  debar  the  rights  of  offspring  born, 
subsequently  of  the  marriage.''  A  man's  will  by  the  older  policy 
of  our  law,  was  not  revoked  by  his  subsequent  marriage  at  all ;  ^ 
but  late  statutes  in  England  and  many  American  States  give  mar- 
riage that  absolute  effect.^     Either  spouse  may  or  may  not,  under 


49  Vt.  236,  24  Am.  Rep.  133,  it  is 
held  that  a  woman's  will  of  person- 
alty is  revoked  by  her  subsequent 
marriage,  while  her  devise  of  real 
estate  is  not,  under  the  Vermont  stat- 
utes. Where  our  courts,  under  the 
influence  of  the  late  marital  legisla- 
tion, treat  the  wife's  will  as  not  per 
se  revoked  by  her  marriage,  their 
main  object  seems  to  be  to  put  wife 
and  husband  upon  an  equal  plane  in 
this  respect.  But  that  effect  would 
be  accomplished  by  causing  marriage 
to  operate  a  revocation  correspond- 
ingly of  the  husband's  will.  In 
various  States,  however,  the  common 
law  rule  is  held  with  questionable 
liberality,  to  have  been  so  changed 
by  the  statutory  removal  of  the  wife's 
disabilities  with  respect  to  the  dis- 
position of  her  property  that  a 
woman's  marriage  works  no  revoca- 
tion of  her  will.  Roane  v.  Holings- 
head,  supra;  Lyon's  Will,  supra. 
And  see  constitutional  provision  as 
to  "  devise,"  construed  in  Noyes  v. 
Southworth,  supra.  As  to  the  im- 
perfect statute  expression,  that  the 
will  of  an  "unmarried"  woman  shall 
be  deemed  revoked  by  her  subsequent 


marriage,  see  131  N.  Y.  620,  15  L.  R. 
A.  292,  60  Am.  St.  Rep.  664;  100  N. 
Y.  S.  1100.  See,  aso.  Smith  v.  Clem- 
son,  6  Houst.  171;  Hibberd  v.  Trask, 
67  N.  E.   179,   160   Ind.   498. 

4.  Craft's  Estate,  164  Penn.  St. 
520,  30  A.  493.  And  see  Francis  v. 
Marsh,  46  S.  E.   573,  54  W.  Va.  545. 

5.  As  to  the  old  law  concerning 
revocation  of  a  man's  will  by  mar- 
riage and  the  birth  of  a  child,  see 
next  section. 

6.  This  subject  is  now  set  at  rest 
in  England  by  the  new  Statute  of 
Wills,  which  enacts  that  "  every  Avill 
made  by  a  man  or  woman  shall  be 
revoked  by  his  or  her  marriage,"  etc. 
1  Vict.  c.  26,  §  18;  Appendix,  post. 
See  15  P.  D.  Ill,  152.  Among  the 
American  States  whose  legislation  is 
now  of  the  same  general  purport, 
may  be  mentioned  Rhode  Island, 
Pennsylvania,  Virginia,  West  Vir- 
ginia, North  Carolina,  Connecticut, 
Georgia,  Kentucky,  Illinois  and  Cali- 
fornia. See  1  Jarm.  Wills,  122,  note; 
McAnnulty  v.  McAnnulty,  120  111. 
26;  Ellis  v.  Dardcn,  86  Ga.  368;  13 
S.  D.  335,  100  N.  W.  738;  46  S.  E. 
573;  78  S.  E.  711,  95  S.  C.  118.  As  to 


528 


CHAP.    I.] 


REVOCATION    OF    WILLS. 


§    425 


such  a  policy,  prove  disabled  from  making  a  new  will  at  pleasure ;  ^ 
but  at  all  events  the  will  made  before  marriage  fails,  as  ought  every 
disposition  in  legal  and  moral  derogation  of  new  conjugal  rights, 
which  was  not  founded  in  a  fair  and  open  treaty  and  antenuptial 
settlement  between  the  parties  contemplating  a  marriage.* 

The  survival  of  the  spouse  who  disposed  by  will  before  or  dur- 
ing marriage  does  not  of  itself  affect  the  validity  of  such  a  testa- 
ment.^ 

§  425.  The  Same  Subject:    Marriage  and  Birth  of  Child. 

Unequally  as  the  old  common  law  treated  husband  and  wife  in 
respect  to  their  wills,  a  rule,  borrowed  from  the  civilians,  has  for 
at  least  two  centuries  reduced  the  difference  of  their  condition ; 
namely,  that  if  the  husband  not  only  married  but  had  a  child  bom 
to  him  after  making  his  will,  a  revocation  should  be  implied/ 
And  the  same  rule  was  aftei-wards  extended  to  marriage  and  the 


statute  exception  where  will  not  re- 
voked was  in  actual  contemplation  of 
the  marriage  see  170  Mass.  401,  40  L. 
R.  A.  191,  49  N.  E.  623.  And  see 
Stimson  Am.   Stat.  Law,   §  2676. 

In  Connecticut  a  testator  married 
before  the  legislature  enacted  that 
marriage  should  revoke  a  will.  He 
had  made  a  will  before  marriage, 
which  he  told  his  wife  he  would  de- 
stroy, but  he  did  not  do  so.  It  was 
held  that,  inasmuch  as  the  act  should 
not  be  deemed  retrospective,  he  had 
not  revoked  his  will.  Goodsell's  Ap- 
peal, 55  Conn.  171.  Contra,  where 
the  testator  married  after  the  stat- 
ute took  effect,  though  his  will  had 
■  been  previously  made.  170  Mass.  401, 
403,  supra. 

7.  As  to  the  disability  of  a  married 
woman  in  this  respect,  see  supra,  §§ 
45-64. 

8.  Schoul.  Hus.  and  Wife,  §  348; 
87  Cal.  643. 

34  529 


9.  Clough  V.  Clough,  3  Myl.  &  K. 
296;  Long  v.  Aldred,  3  Add.  48; 
Trimmell  v.  Fell,  16  Beav.  537.  See 
c.  3,  post. 

1.  This  rule  is  of  modern  origin, 
so  far  as  English  law  is  concerned. 
It  is  found  in  Inst.  1.  2,  tit.  13.  The 
first  reported  decision  in  English 
courts  is  Overbury  v.  Overbury 
(1682),  2  Show.  242;  Emerson  v.  Bo- 
ville,  1  Phillim.  342,  and  citations. 
It  was  subsequently  adopted  in  the 
common-law  courts  (1771)  in  Chris- 
topher V.  Christopher,  4  Burr.  2171, 
2181,  note.  See  1  Wms.  Exrs.  193. 
The  American  decisions  under  this 
head  are  numerous.  See  Brush  v. 
Wilkins,  4  Johns.  Ch.  506;  Warner 
V.  Beach,  4  Gray,  163;  Jacks  v.  Hen- 
derson, 1  Desaus.  543;  Tomlinson  v. 
Tomlinson,  1  Ash.  224;  4  Kent  Com. 
527, 


§    425  LAW    OF    WILLS.  [PAET    IV. 

birtli  of  a  posthumous  cliild.^  In  applying  such  a  rule,  the  eccles- 
iastical courts  appear  to  have  long  regarded  the  case  as  one  of  pre- 
sumption merely,  and  subject,  after  all,  to  what,  on  the  whole,  the 
testator  might  be  sho^vn  to*  have  actually  intended.^  But  the  com- 
mon law  tribunals,  impressed  more  deeply  by  the  justice  of  such 
a  policy  and  the  analogy  of  the  wife's  condition,  solemnly  decided 
that  the  principle  was  one  of  legal  inference,  independently  alto- 
gether of  what  the  party  himself  might  have  intended.* 

Modem  legislation  robs  this  topic  of  its  former  prominence  in 
the  law  of  testamentary  revocation.^  But  as  various  States  still 
adhere  to  the  conjugal  distinction,  we  may  briefly  observe  one  or 
two  salient  points  of  this  doctrine.  Marriage  alone,  or  the  birth 
of  a  child  alone,  did  not  operate  to  revoke  the  testator's  will ;  both 
conditions  must  have  succeeded  his  act  of  disposition ;  and  hence 
the  birth  of  his  posthumous  child  was  held  by  the  common  law 
courts  not  to  repeal  a  will  made  by  the  husband  during  marriage.^ 
Here,  however,  the  ecclesiastical  rule  of  regarding  one's  intention 
had  its  advantage ;  for  other  circumstances  might  afford  a  handle 

2  1  Wms.  Exrs.  193 ;  1  Jarm.  Wills,  ancy  now  disappears  under  the  Stat- 

123;   4  Kent  Com.  522;   Doe  v.  Lan-  u*e   of   Victoria,   wherever   that   stat- 

cashire,  5  T.  R.  49;  Hart  v.  Hart,  70  iite    operates.      See,    further,    Israeli 

Ga.   764;    11   Phila.   110.  v    Eodon,  2  Moore  P.  C.  51. 

3.  Wms.  Exrs.  194;  1  Phillim.  473;  5.  Supra,  §  424.  But  the  legisla- 
1   Hagg.    711.  tive   change  must  be  an   explicit  one 

4.  Marston  v.  Fox,  8  Ad.  &  E.  14,  in  order  to  take  effect.  The  common 
which  all  the  judges  of  England  as-  law  rule,  that  there  must  be  marriage 
sembled  to  decide,  Lord  Denman  being  and  the  birth  of  issue,  in  order  to  re- 
absent.  This  was  a  case  of  real  es-  vokc,  is  not  sufficiently  abrogated  by 
tate;  and  it  may  partially  explain  statutes  which  enlarge  the  wife's 
the  contradictory  opinions  held  by  right  to  inherit  from  her  husband. 
spiritual  and  temporal  judges  on  this  Hulett's  Estate,  66  Minn.  327.  69  X. 
point,  that  the  Statute  of  Frauds  W.  31,  101  N.  W.  144,  125  Iowa.  424. 
excluded  parol  evidence  of  intent  .'is  6.  Wellington  v.  Wellington.  4 
much  as  possible  where  devises  were  Uurr.  2171 ;  Doe  v.  Barford.  4  M.  & 
concerned;  while  wills  of  personal  Sel.  10;  4  Kent  Com.  523,  and  cases 
property  (those  with  which  the  spir-  cited;  Yerby  v.  Yerby,  3  Call.  357; 
itiial  courts  dealt)  were  quite  unen-  Havens  v.  Van  Den  Burgh,  1  Denio, 
fumhered     with     such     provisions.      1  27. 

Wms.    Exrs.    196.      All    this    discrep- 

530 


CHAP.    I.]  REVOCATION    OF    WILLS.  §    42G 

for  inferring  that  a  revocation  was  really  meant;'  nor  did  such 
courts  positively  assert  that  a  marriage  subsequent  to  the  will  was 
in  every  case  indispensable.* 

Whether  the  order  of  events,  marriage  and  birth,  is  here  of  ma- 
terial consequence,  the  cases  do  not  clearly  decide.^  But  at  all 
events,  the  rule  of  revocation  would  apply  all  the  same,  whether 
the  testator  who  re-married  was  a  widower  when  he  executed  the 
will  in  question,  with  children  by  a  former  wife  for  whom  the  will 
had  provided,  or  an  unmarried  man,  so  far  as  his  personal  estate 
was  concerned.^  And  we  should  remember  that  revocation  of  a 
will,  under  any  such  circumstances,  could  work  no  greater  hard- 
ship than  to  bring  about  a  descent  and  distribution  of  the  estate 
under  the  just  and  politic  rules  which  the  law  prescribed  for  in- 
testacy.^ 

§  426.  The  Same  Subject. 

But  the  rule  of  implied  revocation  in  such  cases  does  not  operate 
where  the  will  itself  has  provided  for  the  future  wife  and  child ;' 
nor,  as  it  appears,  unless  the  entire  estate  is  thereby  disposed  of  to 
their  utter  exclusion  and  prejudice;  *  neglect  of  a  moral  obligation 

7.  1  Wms.  Exrs.  197;  1  Jarm.  the  rule  is  satisfied  by  the  birth  of 
Wills,  124;  Johnston  v.  Johnston,  1  the  child  subsequent  to  the  will,  by 
Pliillim.    147.  a  first  wife,  followed  by  the  testator's 

8.  1    Wms.    Exrs.    197,    198.        In  re-marriage. 

Johnston  v.  Johnston,  1  Phillim.  447,  1.    Havens    v.    Van    Den    Burgh,     1 

Sir  John  Nicholl  puts  the  moral  obli-  Denio,   27.    As  to  land   and   the  rule 

gation  strongly  as  respects  the  birth  of  the  "  heir  apparent "   in  England, 

of    issue    after    making    a    will,    and  see  Sheath  v.  York,  1  Ves.  &  B.  390. 

concludes  that  the  concurrence  of  sub-  2.    Subsequent    marriage    and    the 

sequent   marriage   should   not   always  birth  of  a  child  concurring,  the  will 

be  considered  essential.    But  the  real  became     revoked;      and     though     the 

difficulty    seems    to   be   that   the   new  child  should  afterwards  die,  the  will 

moral   obligation   arises  when   a  man  was    not   revived    without    some    new 

takes   a  wife  and  before  his   child  is  act   or    recognition    on    the   testator's 

born.  part,  by  way  of  giving  it  effect.  Emer- 

9.  See   1   Jarm.   Wills,    124.       Gib-  son  v.   Boville,   1  Phillim.   342. 

bons  V.  Caunt,  4  Ves.  848,  favors  the  3.  Kenebel  v.  Scrafton,  2  East,  530. 

conclusion    that   the   order   of   events  4.   Kenebel     v.     Scrafton,    2    East, 

makes  no  difference;   and  hence- that      541;     Brady     v.     Cubit.     Dougl.    40; 

531 


42  G 


LAW    OF    WILLS. 


[part   IV. 


l>eing  the  point  of  inquiry,  rather  than  what  the  testator  had  in- 
tended. But,  as  we  have  seen,  the  courts  did  not  harmonize  upon 
the  underlying  principle ;  the  ecclesiastical  tribunals  seeking,  on 
the  one  hand,  in  the  light  of  circumstances  and  the  t^tator's  own 
conduct  and  declarations,  to  interpret  his  purpose;  courts  tem- 
poral, on  the  other,  pronouncing  the  revocation  absolute,  where 
duty  compelled,  regardless  of  one's  intention,^ 

In  this  country  the  rule  of  judicial  construction  is  greatly  af- 
fected by  loe^l  statutes  on  this  subject.  'Some  States,  as  we  have 
seen,  make  the  will  of  man  or  woman  absolutely  revoked  (as  in 
England)  by  his  or  her  marriage;  ^  in  others  the  older  rule  of  law 
still  prevails  that  no  revocation  of  a  man's  will  occurs  without 
subsequent  marriage  and  birth  of  a  child.  Whether  revocation 
should  operate,  however,  in  this  latter  case  as  a  legal  pre-^umption 
or  as  a  mere  presumption  of  fact  open  to  rebutting  proof,  is  not 
positively  and  uniformly  settled;  but  the  local  enactment  guides 
frequently  the  favored  conclusion.^     Children  born  after  the  mak- 


Marston  v.  Fox,  8  ^d.  &  El.  570. 
Mansfield,  Ellenborough  and  Tindal 
were  in  accord  on  this  point.  And 
see  4  Kent  Com.  621;  Havens  v.  Van 
Den  Burgh,  1  Denio,  27;  Jackson  v. 
Jackson,  2  Penn.  St.  212. 

5.  8upra:  §  425;  Marston  v.  Fox, 
8  Ad.  &  El.  14;  Fox  v.  Marston,  1 
Curt.  494.  But  the  preceding  note 
indicates  that  temporal  courts  were 
reluctant  to  enforce  their  own  sweep- 
ing rule  of  revocation  unless  the 
breach  of  duty  was  positive. 

6.  fiupra,  §  424. 

7.  See  the  various  statutes,  those 
of  New  York  and  Alabama,  for  in- 
stance; wliile  some  States  appear  to 
follow  the  rule  still  on  common  law 
principles.  The  Georgia  statute 
speaks  of  marriage  or  the  birth  of  a 
child  as  revoking  10  Ca.  79;  Deu- 
j)r('e  V.  Deupree,  45  TJa.  415.  Varions 
otiier    local    peculiarities    are    notice- 


able. Thus,  the  New  York  code  makes 
the  case  one  where  a  will  disposes  of 
the  whole  estate;  subsequent  mar- 
riage and  birth  of  a  child  follows, 
and  the  wife  or  issue  survives  the 
testator.  If  the  will  shows  an  inten- 
tion not  to  make  any  provisions,  re- 
vocation is  avoided.  2  N.  Y.  Rev. 
Stats.  64,  §  43;  4  Kent  Com.  526, 
527.  In  Virginia  and  Kentucky  a 
child  born  after  the  will,  if  the  testa- 
tor had  no  children  before,  revokes, 
unless  such  child  dies  unmarried  or 
an  infant;  but  if  one  had  children  be- 
fore, the  after-born  children,  unpro- 
vided for,  work  only  a  revocation 
pro  tanto.  4  Kent  Com.  526.  Mar- 
riage and  the  birth  of  a  posthumous 
child  revokes.  Belton  v.  Summer,  31 
Fla.    139. 

For  the  rnlos  of  variotis  States.  se,e 
Edwards's  Appeal,  47  Penn.  St.  144; 
Morse  v.  Morse,  42  Ind.   365;   Negus 

32 


CHAP.    I.] 


EEVOCATIOX    OF    WILLS. 


§    420 


ing  of  a  will,  posthumous  or  otherwise,  are  found  the  subject  of 
■still  broader  euactmcnts,  as  for  instance  in  most  of  the  'New  Eng- 
land and  Middle  States,  Ohio  and  Indiana ;'  but,  on  the  whole,  the 
policy  of  such  statutes  is  only  to  revoke  the  will  so  far  as  to  let  them 
in,  when  otherwise  improvided  for,  to  the  share  which  would  have 
fallen  to  them  in  case  the  father  had  died  inte^tate.^  Many  Ameri- 
can codes  go  still  further,  and  supply  the  same  relief  to  all  chil- 
dren and  their  legal  representatives  for  whom  the  paternal  will 
makes  no  provision,  and  who  have  had  no  advancement  during  the 
parent's  life,  unless  the  omission  is  shown  to  have  been  inten- 
tional.^ Under  legislation  like  this  last,  intention  and  not  moral 
obligation  becomes  plainly  the  ultimate  criterion;  and  parol  evi- 
dence may  explain  whether  a  child  was  omitted  intentionally  or 
through  inadvertence.^     Where  under  local  statute  a  subsequent 


V.  Negus,  46  Iowa,  487,  26  Am.  Rep. 
157;  1  Jarm.  Wills,  129,  American 
note.  An  expression  of  confidence  in 
one's  will  that  the  child  to  be  born 
Avill  be  reared  honorably  by  the  testa- 
tor's wife  does  not  prevent  the  legal 
revocation  from  operating.  Walker 
V.  Walker,  34  Penn.  St.  483.  Under 
the  Iowa  statute  the  birth  and  recog- 
nition of  an  illegitimate  child  revokes 
a  will  previously  executed.  Milburn 
V.  Milburn,  60  Iowa,  411.  But  cf. 
Kent  V.  Barker,  2  Gray,  535.  The 
mere  marriage  of  the  testator  does 
not  revoke  under  the  Texas  statute. 
Morgan  v.  Davenport,  60  Tex.  230, 
7  L.  R.  A.  485,  23  N.  E.  860.  A 
Pennsylvania  statute  of  1833  renders 
a  man's  will  made  before  marriage 
inoperative  either  as  to  the  wife  or 
the  after-born  children  not  provided 
for;  thus  establishing  only  partial  in- 
testacy in  either  case.  121  Penn. 
St.  1. 

In   short,   statute   expressions   vary 
BO  greatly  in  America,  that  it  seems 


impossible  to  extract  from  our  cases 
a  uniform  doctrine. 

8.  This  provision  is  an  absolute 
one,  as  such  statutes  are  commonly 
worded,  and  the  revocation  is  pro 
tanto,  at  least,  regardless  of  what  the 
testator  may  have  intended.  Wa- 
terman V.  Hawkins,  63  Me.  156; 
Knotts  V.  Stearns,  91  U.  S.  638, 
23  L.  Ed.  252;  supra,  §  20.  But  if 
the  will  discloses,  without  the  aid  of 
extrinsic  evidence,  an  intention  not 
to  provide,  some  of  these  acts  appear 
to  avoid  a  legal  revocation.  See,  also, 
Coudert  v.  Coudert,  43  N.  J.  Eq.  407, 
5  A.  722;  Rhodes  v.  Weldy,  46  Ohio, 
234,  15  Am.  St.  Rep.  584,  20  N.  E. 
461;    Ward   v.   Ward,   120  111.   111. 

9.  Supra,  §  20.  As  to  an  adopted 
child,  see  89  N.  C.  441;  Davis  v. 
Fogle,  124  Ind.  41,  7  L.  R.  A.  485, 
23  N.  E.  860. 

1.  Parol  evidence  is  admissible  to 
show  whether  the  omission  was  in- 
tentional or  not;  the  right  being  re- 
served to  a  parent  to  disinherit  his 
own  offspring  at  discretion.    Bancroft 

33 


§  42  Ga 


LAW    OF    WILLS. 


[part   IV. 


marriage  revokes  the  will,  revocation  is  doubly  fortified  by  the 
birth  of  offspring  of  that  marriage.^ 

§  426a.  Effect  of  Full  Divorce. 

\Miere  there  is  a  complete  and  not  merely  a  partial  divorce  of 
the  married  parties,  and  their  reciprocal  property  rights  are  fixed, 
they  become  strangers  to  each  other  and  neither  owes  the  other  any 
lurther  duty.  The  natural  presumption  arising  from  these  changed 
relations  would  therefore  seem  to  imply  in  law  the  revocation  of 
any  existing  will  of  either  spouse  made  in  favor  of  the  other. 
Such  is  the  rule  sometimes  asserted,^  though  decisions  point  occa- 
sionally in  the  opposite  direction,*  and  something  may  fairly  de- 
pend upon  the  actual  character  of  the  disposition  and  the  cause  of 
divorce.^ 


V.  Ives,  3  Gray,  367;  Wilder  v. 
Thayer,  97  Mass.  439;  Lorings  v. 
Marsh,  6  Wall.  337,  18  L.  Ed.  802. 
The  intention  is  sometimes  shown  by 
the  will  itself.  Prentiss  v.  Prentiss, 
11  Allen,  47.  But  the  burden  of  proof 
is  upon  those  who  set  up  an  inten- 
tional omission.  Ramsdill  v.  Went- 
worth,  106  Mass.  320.  The  later  ac- 
quisition by  the  testator  of  addi- 
tional property  aflfords  no  reason  for 
not  applying  the  usual  rule  that  sub- 
sequent marriage  with  birth  of  a 
child  revokes.  Baldwin  v.  Spriggs, 
65  Md.  373,  4  A.  410. 

An  antenuptial  provision,  under  a 
settlement,  in  favor  of  wife  and  fu- 
ture issue  may  prevent  that  revoca- 
tion which  the  statute  imports.  Gay 
V.  Gay,  84  Ala.  38;  supra,  §  424. 
And  as  to  non-revocation  by  marriage 
alone,  where  a  will  made  before  mar- 
riage expressly  provided  for  tlic  in- 
tended wife,  see  Fidelity  Trust  Co.'s 
Appeal,  121  Penn.  St.  1. 

lender  the  West  Virginia  code, 
where  a  married  woman,  having  no 
children,  devises  all  her  estate  to  licr 

n 


husband,  and  afterwards  has  issuo 
who  survive  her,  the  will  does  not 
take  full  effect.  Cunningham  v.  Cun- 
ningham, 30  W.  Va.  599,  5  S.  E.  139. 
As  to  declarations  of  a  testator  on 
the  point  of  such  legal  revocation, 
see  siip)-a,   §   403. 

2.  See  Craft's  Estate,  164  Penn.  St. 
520,  30  A.  493. 

And  see,  further,  58  A.  846,  209 
Penn.  456,  68  L.  R.  A.  464;  Easter- 
lin  v.  Easterlin,  56  So.  688  (Fla.); 
Lally's  Will,  92  N.  E.  1089,  198  N. 
Y.  608;  Wood  v.  Tredway,  69  S.  E. 
445,  111  Va.  526;  Planner  v.  Plan- 
ner, 75  S.  E.  936,  169  N.  C.  126; 
GO  So.  318,  43  L.  R.  A.  (N.  S.) 
1195. 

3.  Lansing  v.  Haynes,  95  Mich.  13, 
54  N.  W.  699,  35  Am.  St.  Rop. 
505;  Wirth  v.  Wirth,  149  Mich. 
687,   113   N.   W.   306. 

4.  Charlton  v.  Miller,  27  Ohio  St. 
298,  22  Am.  Rep.  307;  Baacke  v. 
Baacke,  50  Neb.  18,  23. 

5.  See  Jones's  Estate,  60  A.  915, 
211  Penn.  364,  69  L.  R.  A.  940,  107 
Am.    St.    Rep.    58L 


34 


CHAP.    I.] 


EEVOCATION    OF    WILLS. 


427 


§  427.  Other  Cases  of  Revocation;  Revocation  Implied  by  Law; 
Alteration  of  Estate,  etc. 

The  books  state  other  cases  of  revocation  implied  by  law ;  not, 
however,  without  a  vague  extension  of  the  word  "  revocation  "  be- 
yond that  genuine  repeal  of  a  testamentary  instrument  to  which 
it  is  more  properly  confined.®  Alteration  of  one's  estate  is  particu- 
larly dwelt  upon  in  this  connection.  If  a  will  devises  nothing  but 
a  particular  piece  of  land,  and  the  testator  afterward  sells  that 
land,  a  revocation  of  the  devise  may  be  implied ;  and  so  if  a  testa- 
ment simply  bequeaths  specific  chattels  which  are  otherwise  dis- 
posed of  during  one's  life,  there  remains,  at  all  events,  nothing 
for  his  will  to  operate  upon.''     But  one's  estate  may  over  and  over 


6.  1  Jarm.  Wills,  147  et  seq.,  where 
a  chapter  is  devoted  to  "  revocation 
by  alteration  of  estate,"  with  a  con- 
siderable exposition  of  the  old  law  on 
this  subject. 

Notwithstanding  the  provisions  of 
the  Statute  of  Frauds  on  the  subject 
of  revocation,  it  has  been  held  that 
a  will  may  be  revoked  by  implication 
or  inference  of  law.  "Among  these 
implied  revocations  is  any  act  of  the 
testator  which  alters  the  estate  or 
interest  held  by  him  in  the  lands  de- 
vised at  the  date  of  the  will;  as  for 
instance,  a  conveyance  of  the  same, 
or  a  valid  contract  to  do  so.  The  will 
takes  effect  only  at  the  death  of  the 
testator.  Real  property  acquired  after 
making  the  will  goes  to  the  heir. 
(But  see  supra,  §§  28,  29.)  If,  there- 
fore, the  testator  is  not  seized  at  the 
time  of  his  death,  of  the  same  estate 
or  interest  in  the  premises  that  he 
was  at  the  time  of  making  his  will, 
the  same  does  not  pass  by  the  devise, 
but  goes  to  the  heir.  This  is  held 
either  upon  the  ground  that  the  al- 
teration of  the  estate  is  evidence  of  a 
change  of  purpose  on  the  part  of  the 

r.ft 


testator,  or  more  properly,  that  it 
works  a  revocation  of  the  will  by  de- 
priving the  testator  of  the  estate  de- 
vised, and  thus  leaves  nothing  for 
the  will  to  operate  upon  at  his  death." 
Coulson  v.  Holmes,  5  Sawyer,  C.  C. 
282,  per  Deady,  J.;  Walton  v.  Wal- 
ton, 7  Johns.  Ch.  268;'  Henington  v. 
Budd,  5  Denio,  322 ;  Bosley  v.  Boslcy, 
14  How,  395;  Ballard  v.  Carter,  5 
Pick.  116;  Kean's  Will,  5  Dana,  25; 
4  Kent  Cora.  528;  2  Greenl.  Ev.  § 
686;  1  Jarm.  Wills.  147-149,  and  Eng- 
lish cases  cited.  Cf.  Prater  v.  Whit- 
tle,  16  S.  C.  40. 

7.  A  deed  or  conveyance  of  all  the 
property  given  by  the  will  is  revoca- 
tion of  the  will  and  may  be  pleaded. 
Epps  v.  Dean,  28  Ga.  533;  Bowen  v. 
Johnson.  6  Ind.  110,  61  Am.  Dec.  110. 
If  sucli  deed  was  duly  executed  and 
delivered,  it  matters  not  that  it  wa" 
not  recorded  while  the  testator  lived. 
Collup  V.  Smith,  89  Va.  258,  15  S.  E. 
584.  But  the  execution  of  a  contract 
to  sell  the  land  devised  for  a  nominal 
sum  is  no  revocation.  100  Wis.  192, 
75  N.  W.  971.  See  Conn.  Trust  Co. 
v.   Chase,   55  A.   171,   75   Conn.   683; 


§  427 


LAW    OF    WILLS. 


[PAET    IV. 


again  change  in  value  and  specific  character  between  the  date  of 
executing  it  and  his  death.  The  proportions  as  between  various 
beneficiaries  may  greatly  change  beyond  what  he  had  intended; 
he  may  part  with  this  piece  of  property  and  acquire  that ;  ^  one  ob- 
ject of  his  bounty  may  die  and  another  may  come  into  existence ; 
he  may  even  die  so  involved  in  debt  or  utterly  bankrupt  as  in  effect 
to  annihilate  the  gifts  which  his  own  testament  professes  to  be- 
stow.^ All  this,  however,  does  not,  at  our  day,  revoke  in  any  such 
sense  as  to  set  the  instrument  itself  practically  aside  in  whole  or 
in  part  or  disentitle  it  to  probate.  The  testator's  appointment  of 
executor  still  takes  effect;  his  scheme  of  disposition  is  not  super- 
seded in  form;  only  it  becomes  a  matter  of  practical  administra- 
tion, assisted  by  legal  construction  of  the  will,  to  determine  how 
far  and  in  what  proportions  his  gifts  may  have  failed,  if  they  fail 
at  all,  under  his  unrevoked  testament.  For  those  principles  of 
construction,  search  should  be  made  under  a  different  heading  fro'm 
the  present. 


125  Mich.  357,  84  N.  W.  293;  Ben- 
son's Estate,  58  A.  135,  209  Penn. 
108;  Templeton  v.  Butler,  94  N.  W. 
306,  117  Wis.  445  (revocable  cer- 
tificate) ;  Ostrander  v.  Davis,  191  F. 
158;  Watson  v.  McLenck,  110  P. 
482,  57  Ore.  446. 

If  the  gift  by  the  will  is  general 
and  not  specific,  it  necessarily  fails 
if  there  be  no  such  general  property. 
This,  however,  would  not  be  readily 
ascertainable  until  the  estate  was 
settled;  and  as  preliminary  to  a  set- 
tlement, the  will  semble,  if  there  be 
one,  ought  to  be  admitted  to  probate. 
See  Morey  v.  Sohier,  63  N.  H.  507, 
56  Am.  Rep.  538,  3  A.  636.  A  par- 
ticular bequest  may  be  practically  re- 
voked by  a  contract  inconsistent  with 
it.  Walker  v.  Steers,  14  N.  Y.  Supr. 
39S. 

A  simulated  tran.sfcr  of  the  prop- 
erty bequeathed   should   not  carry    a 

5-' 


revocation  of  the  legacy;  for  the  in- 
tent of  the  testator  is  thus  shown  to 
have  been  not  to  revoke.  Blakemore's 
Succession,  43  La.  Ann.  845.  See  as 
to  ademption,  etc..  Vol.  II.  §  1471; 
Spinney  v.  Eaton,  87  A.  378,  111  Me. 
1,  46  L.  R.  A.  (N.  S.)  535;  143  N.  Y. 
S.  546;  May  v.  Sherrard,  79  S.  E. 
1026,   115  Va.  617. 

8.  See  supra,  §§  28,  29. 

9.  No  matter  how  long  a  man  maj' 
live  after  making  his  testament,  even 
though  he  should  become  insane;  or 
how  much  his  wealth  and  substance 
may  increase  or  diminish;  or  what 
objects  of  his  bounty  and  afi"ection 
may  die  before  him;  no  legal  infer- 
ence arises,  nor  even  a  presumption 
of  fact,  that  he  has  revoked  his  will. 
1  Wms.  Exrs.  187,  188;  Swinb.  pt.  7,. 
§  15,  pi.  2;  Doe  v.  Edlin,  4  Ad.  &  El. 
582;   Warner  v.   Beach,  4  Gray,   162. 


6 


CHAP. 


I.]  KEVOCATION    OF    WILLS.  §    427* 


In  short,  revocation  of  a  particular  will  by  mere  inference  of 
law  or  presumption  is  limited  to  a  very  few  instances  in  our  mod- 
em practice;  while,  on  the  other  hand,  changes  in  the  condition  of 
the  testator's  affairs  or  through  the  mortal  chances  to  which  both  he 
and  his  beneficiaries  are  exposed,  may  work  out  a  very  different 
settlement  and  distribution  of  his  estate  after  his  death  from  what 
the  will  purported  to  arrange.  Modem  legislation  itself  repudi- 
ates in  England  and  some  of  our  States  the  whole  theory  of  a  pre- 
sumed intention  to  revoke  on  the  ground  of  an  alteration  in  cir- 
cumstances ;  ^  and  what  is  left  of  that  theory,  aside  from  such, 
statutes,  it  would  be  very  difficult  to  say.^ 

§  427a.  Mental  Incapacity,  Fraud,  Force  and  Error,  in  issues  of 
Revocation. 

It  is  readily  to  be  inferred  from  what  has  been  said,  that  revoca- 
tion of  a  will,  like  any  testamentary  disposition,  is  open  to  im- 
peachment, in  the  usual  manner,  for  mental  incapacity,  or  be- 
cause the  exertion  of  undue  influence,  fraud,  or  force  upon  the  tes- 
tator induced  the  act.^     Even  error  on  the  testator's  part  may  be 

1.  Act  1  Vict.  c.  26,  §  19;  Appen-  made;  nor  by  the  concurrence  of  all 
dix,  post;  4  Kent  Com.  532,  533;  these  circumstances.  Hoitt  v.  Hoitt, 
Stimson  Am.  Stat.  Law,  §  2676.  A  63  N.  H.  475,  20  Am.  Rep.  55.  The 
will  in  the  nature  of  an  appointment  law  applicable  to  the  testamentary 
of  a  fund  is  not  revoked  by  the  testa-  disposition  of  property — with  its  in- 
tor's  subsequent  assent  to  the  diver-  ferences  as  to  an  intent  to  pass  after- 
sion  of  that  fund.  Clements  v.  Horn,  acquired  property  (supra,  §  29)  has 
44  N.  J.  Eq.  595,  18  A.  7.  And  see  been  so  far  modified  in  these  later 
Burnham  v.  Comfort,  108  N.  Y.  535,  times  as  to  leave  instances  of  a  total 
2  Am.  St.  Rep.  462,  15  N.  E.  710;  revocation  under  this  section  by  im- 
142  Mo.  244,  64  Am.   St.   Rep.   560.  plication    of    law    almost    impossible. 

2.  See  Shaw,  C.  J.,  in  Warner  v.  See  Morey  v.  Sohier,  63  N.  H.  507, 
Beach,  4  Gray,  163.  A  will  is  not  re-  512.  And  see  Baacke  v.  Baacke,  50 
voked  by  the  death  of  the  legatees  or  Neb.  18,  69  N.  W.  303;  Woodward  v. 
devisees  named  in  it ;  nor  by  the  alien-  Woodward,  81  P.  322,  33  Col.  457; 
ation  of  the  larger  portion  of  the  tes-  Hospital  Trust  Co.  v.  Keith,  57  A. 
tator's   estate   which   was   specifically  1060,  26  R.  I.   42. 

disposed  of  by   his  will;   nor  by  the  3.   Cf.   §§   384,   387,   395,   and  cases 

acquisition  of  a  much  greater  estate      cited  with   Part  II.  supra;    Ross    v.. 
than  he  possessed  when  the  will  was      Gleason,  115  N.  Y.  664,  22  N.  E.  149;, 

537 


§  427a  LAW  OF  WILLS.  [taut  IV. 

shown  to  have  caused  the  revocation,  where  he  expressly  founds 
his  revocation  on  the  assumption  of  a  fact,  derived  from  the  in- 
formation he  has  received  from  others,  which  is  shown  to  be  false ; 
though  where  the  fact  was  peculiarly  within  his  own  knowledge, 
error  would  be  unlikely.*  In  short,  whether  revocation  or  altera- 
tion be  by  a  new  will  or  codicil  or  by  some  oral  act  of  cancelling 
or  destroying,  mental  capacity  and  freedom  from  constraint  are 
requisite  as  in  making  the  original  will.^ 

Graham  v.  Burch.  44  Minn.  33,  46  N.  321;    Evans   v.    Evans,    10   Ad.   &   E. 

W.    148;    47    Minn.    171,    28    Am.    St.  228. 

Rep.  339,  49  N.  W.   697;    86    N.    W.  5.    See    Gardner     v.     Gardner,    177 

946,    127   Mich.    496.  Penn.  218,  35  A.  558. 

4.   Mendinhall's  Appeal,   124   Penn.  As   to   wills   not   revocable   because 

St.  387,  10  Am.  St.  Rep.  590,  16  A.  of  a  consideration,  see  Part  V,  post. 
881;   Campbell   v.  French,  3  Ves.  Jr. 

538 


CHAP.    II.]  ALTERATION    OF    WILLS.  §    429 


CHAPTER  11. 

ALTERATION    OF    WILLS. 

§  428.  The  Word  "  Alteration  " ;  Alteration  of  Disposition  or  of 
an  Instrument;  Partial  Revocation, 

"Alteration  of  a  will  "  may  be  understood  in  either  of  two 
senses:  first,  and  more  generally,  that  of  changing  one's  own  tes- 
tamentary disposition,  by  whatever  external  acts  this  may  be  ef- 
fected ;  second,  and  more  specifically,  that  of  changing  the  face  of 
the  written  testament  itself  by  an  outward  act  which  may  or  may 
not  have  been  performed  by  the  testator  or  under  his  sanction. 

It  may  be  convenient  to  treat  of  this  subject  in  both  senses  of 
the  phrase.  But  however  we.  may  use  the  word  "  alteration,"  we 
are  not  to  consider  it  as  involving  the  idea  of  a  total  revocation 
of  the  existing  will,  but  only  a  revocation  'pro  tanto,  if  a  legal 
revocation  at  all.  A  later  will  is  not  substituted  in  place  of  the 
earlier  one,  but  there  is  at  most  a  variation  in  the  former  terms,  and 
intent  must  be  gathered  from  the  original  will  and  its  amendments 
taken  together. 

§  429.  Alteration  of  the  Instrument  to  be  first  considered ;  Testa- 
tor's Right  to  alter. 

Let  us  first  consider  the  more  specific  alteration,  which  consists 
in  changing  externally  the  face  of  the  original  testament.  Acts  of 
cancelling  and  obliterating,  as  well  as  of  spoliation,  and  their 
effect  in  totally  revoking  a  will  where  the  intent  accompanies  the 
•act,  have  already  been  discussed ;  ^  and  it  has  been  observed  that 
one  could  partially  erase,  cancel  or  even  obliterate,  a  written  tes- 
tament, under  the  older  law,  so  as  only  to  revoke  the  will  in  part, 
as,  for  instance,  by  annulling  some  particular  bequest.^ 

Now  to  pursue  this  latter  idea  somewhat  farther.  The  material 
alteration  of  a  deed  or  contract,  by  one  party  under  it  without  con- 

1.  Supra,  §§  383-396.  2.  fiupra,  §   397. 

539 


§    431  LAW    OF    WILLS.  [PAET    IV. 

sent  of  the  other,  avoids  the  instrument  in  an  extreme  case ;  other- 
wise it  leaves  the  estate  or  interest  acquired  as  before;  and  the 
altering  party  is  not  free  to  modify  it  by  his  altered  intention.^ 
But  a  willj  having  per  se  no  element  of  mutuality,  but  resting  in 
the  testator's  discretion,  the  maker  may  change  it  at  pleasure,  pro- 
vided the  formalities  of  execution  which  the  statute  imposes  for 
the  better  safeguard  of  such  instruments  be  properly  observed. 
And  what  we  say  here  of  alteration,  applies  not  only  to  changes 
of  language  and  expression,  but  to  the  striking  out  of  existing 
words,  clauses  and  sentences,  or  the  interlining  and  inserting 
others. 

It  need  hardly  be  said  that  alterations  and  erasures  made  in  a 
will  before  it  is  executed,  are,  when  made  by  the  testator  himself 
or  under  his  authority,  effective,  provided  the  fact  of  prior  erasure 
or  alteration  appear;  for  the  true  will  is  the  instrument  as  actually 
executed,  and  probate  should  stand  accordingly.* 

§  430.  General  Right  of  Testator  to  Alter. 

The  general  right  of  a  testator  to  alter,  independently  of  enact- 
ments later  than  the  Statute  of  Frauds,  in  derogation  of  his  infor- 
mal exercise  of  discretion,  has  already  been  noticed.^ 

§  431.  Intention  should  accompany;  Alterations  which  ao  not 
revoke. 
But,  as  in  total  revocation,  intention  should  accompany  the 
act  and  be  fairly  inferable  from  the  manner  of  the  alteration,  in 
order  to  revoke  in  part.  Where  the  testator  alters  certain  legacies 
by  erasing  and  interlining,  and  then  acknowledges  in  the  presence 
of  witnesses  without  signing  again,  this  is  not  to  be  pronounced  a 
revocation,  total  or  partial,  for  it  was  not  thus  intended ;  but  if 
the  statute  mode  of  execution  be  satisfied,  the  will  oonforms  to  the 

3.  11  Co.  27;  Cliamberlaync  Evid.,  whole  or  in  part,  and  full  revocation 
§  2184.  or    revocation    pro     tanto     in     conse- 

4.  Sec  Lurie  v.  Radnit/.er.  100  111.  quence.  Testator  is  permitted  thus  to 
009.  tear  away,  cut,  or  draw  his  pen  over 

5.  See  §§  .301  397.  antr,  as  to  can-  some  particular  bequest  so  as  to  re- 
colling,   era-sing,   obliterating,   etc.,   in  voke  it.     lb. 

540 


CHAP.    II.] 


ALTERATION    OF    WILLS. 


§  431 


amended  scheme  of  disposition,^  The  addition  of  something  which 
is  imperfect,  by  reason  of  infoimal  execution  and  the  lik?,  shouhl 
not  at  all  events,  have  the  etl'ect  of  revoking  that  which  was  perfect, 
8o  as  to  distort  the  testator's  real  meaning.^  In  all  such  cases  the 
testator's  obvious  purpose  is  regarded ;  and  if  cancelling  or  muti- 
lating was  part  of  a  transaction  intended  by  him  to  operate  an  ex- 
press change  of  disposition,  or  not  for  the  purpose  of  simply  strik- 
ing out  some  part  of  the  original  will,  the  failure  of  this  transac- 
tion to  take  full  effect  leaves  the  will  as  originally  executed,  so  far 
at  least  as  it  remains  known.^ 

If,  again,  alterations  and  obliterations  appear  to  have  been  only 
cursory  and  deliberative,  and  not  intended  as  final,  the  passages 
altered  or  obliterated  remain  in  legal  effect  as  before.* 

In  short,  alterations  are  considered  as  a  whole;  and  where 
something  is  stricken  out  simply  that  something  else  may  be  sub- 
stituted, the  failure  of  the  substitution  through  informality  in- 
volves the  failure  of  the  striking-  out.^ 


6.  Wright  V.  Wright,  5  Ind.  389; 
Dixon's  Appeal,  55  Penn.  St.  434; 
Brown  v.  Brown,  74  S.  E.  135,  91  S. 
C  101.  A  careful  interlineation  is 
not  an  "  obliteration "  within  the 
WMll  Act.  Dixon's  Appeal,  ib.  Cf. 
Hesterberg  v.  Clark,  166  111.  241, 
247,  57  Am.  St.  Rep.  135.  46  N.  E. 
734,  which  disapproves  Wright  v. 
Wright,  and  requires  a  reattestation 
to  fulfil  the  statute,  where  an  altera- 
tion was  not  contemporaneous  with 
the  original  execution. 

7.  Heise  v.  Heise,  31  Penn.  St  246; 
15  Penn.  St.  281.  Obliterations  and 
interlineations  are  inoperative  to 
change  a  will,  if  made  with  a  view  of 
disposing  difTerently,  which  is  not 
carried  out.  Whether  the  change  of 
purpose  fails  because  of  sudden  death, 
the  want  of  proper  attestation,  or  any 
other  cause,  so  that  the  attempted 
disposition   is   invalid,   the   cancelling 


of  the  first  being  dependent  thereon, 
is  null,  and  leaves  the  will  standing 
as  before.  Stover  v.  Kendall,  1  Coldw. 
557;  Youse  v.  Forman,  5  Bush.  337. 

8.  Short  V.  Smith,  4  East,  419; 
Wolf  V.  Bolinger,  62  111.  368;  Jack- 
son V.  Holloway,  7  Johns.  394;  Sto- 
ver V.  Kendall,  supra;  Linnard's  Ap- 
peal, 93  Penn.  St.  313,  39  Am.  Rep. 
753.  But  the  failure  of  the  new  dis- 
position by  incapacity  of  the  devisee 
or  from  other  reasons  dehors  the  will 
would  not  obstruct  one's  act  of  re- 
vocation.    §§   410,  418,  supra. 

9.  Parker  v.  Bainbridge,  3  Phillim. 
321;  1  Add.  409;  1  Wms.  Exrs.  143. 
See  Safe  Deposit  Co.  v.  Thom,  83  A. 
45,  117  Md.  154  (cancellation  of  a 
clause  presumed  incomplete,  where 
testator  tried  to  restore  marks  which 
he  had   erased,   etc. ) . 

1.  A  testator  made  certain  eras- 
ures   and    interlineations  in  his  duly 


541 


§  432 


LAW    OF    WILLS. 


[part    IV. 


§  432.  Modern  Legislation  treats  Informal  Alterations  with  Dis- 
favor. 
All  such  informal  alterations,  however,  are  obnoxious  to  the 
policy  of  our  later  legislation,  which  prescribes  for  wills  or  per- 
sonalty not  less  than  realty  a  formal  subscription  and  attestation. 
Under  many  American  codes,  it  may  now  be  assumed  that  altera- 
tions of  disposition,  whether  expressed  on  the  face  of  the  original 
instrument  or  by  new  writings,  and  especially  if  the  change  is  not 
simply  a  complete  erasure  or  destruction,  require  a  statute  execu- 
tion in  presence  of  witnesses  in  order  tO'  operate.^  The  English  act 
1  Vict.  c.  26  is  explicit  in  this  respect ;  at  the  same  time  permitting 
the  testator  and  witnesses  to  sign  in  the  margin  of  the  original 
will  or  opposite  or  near  the  alteration,  or  opposite  or  at  the  end 
of  some  memorandum  on  the  will  which  refers  to  the  alteration.^ 


executed  will.  After  he  made  the  al- 
terations, two  persons,  at  his  re- 
quest, signed  the  will,  as  witnesses  to 
'■  the  erasures  and  interlineations 
made "  by  the  testator.  What  these 
interlineations,  etc.,  were,  the  wit- 
nesses did  not  know.  It  was  held  ( 1 ) 
that  the  alterations  did  not  super- 
sede the  provisions  of  the  will;  (2) 
that  the  witnessing  of  sucii  altera- 
tions did  not  amount  to  an  attesta- 
tion of  the  will  as  altered;  and  (3) 
that  the  alterations  did  not  operate 
to  revoke  the  original  will.  Penni- 
man's  Will,  20  Minn.  245,  18  Am. 
Eep.  368.  In  tnis  case  the  court  dis- 
cussed the  doctrine  of  ineffectual  re- 
vocation, and  rested  upon  the  princi- 
ple that  when  part  of  a  will  is  can- 
celled (or  words,  or  clauses)  for  the 
j)urpose  of  substituting  another  dis- 
position, other  words,  etc.,  which  dis- 
position fails  through  informality,  no 
jiartial  or  total  revocation  takes 
place,  })iit  tlic  will  stands  as  origin- 
ally framed.  For  here  tlio  cancella- 
tion or  obliteration  was  witli  the  idea 

P. 


of  substituting;  and  what  is  relative 
or  subsidiary  cannot  take  effect  by 
itself. 

2.  See  supra,  §§  380,  397;  Dixon's 
Appeal,  55  Penn.  St.  424;  Quinn  v. 
Quinn,  1  N.  Y.  Supr.  437;  Eschbach 
V.  Collins,  61  Md.  478 ;  Leard  v.  As- 
kew, 114  P.  251        (Okl.) 

3.  "  No  obliteration,  interlineation, 
or  other  alteration  made  in  any  will, 
after  the  execution  thereof,  shall  be 
valid  or  have  any  effect,  except  so 
far  as  the  words  or  effect  of  the  will 
before  such  alteration  shall  not  be 
apparent,  unless  such  alteration  shall 
be  executed  in  like  manner  as  here- 
inbefore is  required  for  the  execution 
of  the  will;  but  the  will,  witli  such 
alteration  as  part  thereof,  shall  be 
deemed  to  be  duly  executed  if  the  sig- 
nature of  the  testator  and  the  sub- 
scription of  the  witnesses  be  made  in 
the  margin,  or  on  some  other  part  of 
the  will  opposite  or  near  to  such  al- 
teration, or  at  the  foot  or  end  of  or 
opposite  to  a  memorandum  referring 
to  such  alteration,  and  written  at  the 

42 


CHAP,    n.]  ALTERATION    OF    WILLS.  §    433 

The  statute  attestation  of  an  original  will  is  not  the  attestation 
of  the  will  as  altered.^  And  if  there  is  no  sufficient  attestation 
of  the  will  as  altered,  the  alteration  (as  by  interlininsr  or  striking 
out  and  substituting)  cannot  take  effect,  but  the  will  stands  as 
before,  valid  under  its  previous  execution/' 

§  433.  The  Same  Subject:  Effect  of  Alteration,  etc.,  so  as  to 
render  Illegible. 

The  effect  of  such  legislation,  where  the  alteration  by  oblitera- 
tion or  cancelling  has  rendered  the  original  words  of  the  will  illegi- 
ble, requires  further  consideration.  Here  it  may  be  asked  whether 
the  local  statute  permits  of  partial  as  well  as  total  revocation,  and 
whether  or  not  the  act  in  question  amounts  to  a  partial  destruction 
of  the  will  within  its  intendment.^ 

Partial  revocation  of  a  will  by  burning,  tearing,  or  otherwise 
destroying,  appears  still  allowable  under  the  English  statute,  as 
before ;  ^  and  thus  far  an  unattested  alteration  may  still  operate. 
But  an  obliteration  or  cancellation  which  does  not  wholly  efface 
thiat  part  of  the  will  and  render  the  expunged  words  illegible  is 
no  longer  effectual  without  some  signing  and  attestation.  And 
that  alteration  which  consists  in  substituting  or  interlining  words 
or  clauses  requires  substantially  the  execution  appropriate  to  wills.^ 

end  or  sOme  other  part  of  the  will."  should  not  be  construed  in  these  days 

Act    1    Vict.    c.    26,    §    21;    Appendix,  as    effecting   a   revocation    of   the    in- 

post.        Interlineations      are      conse-  strument.      M'clntire  v.  Mclntire,  162 

quently  valid  under  this  act,  and  en-  U.  S.  383. 

title   the   amended   will     to     probate,  5.    .Tackson   v.    Holloway,    7   Johns, 

when   opposite   tliem    are   the   initials  399;    Doane   v.    Hadlock,    42   Me.    72; 

of   the  testator   and   of  the   attesting  Penniman's   Will,    20    Minn.   245,   18 

witnesses.       24     E.     L.     &    Eq.    608;  Am.  Rep.  3&8;  37  W.  Va.  38,  16  S.  E. 

Blewitt  Re,    5   P.    D.    116.   40   L.    Ed.  489. 

1009    (alteration   by   some  third   per-  6.  Supra,  %  397,  last  c. 

son);  Rowan's  Estate,  83  A.  429,  234  7.   Supra,     %    397;     1    Wms.    Exrs. 

Penn.  584   (addition  of  "jr."  to  iden-  128,   141,   143. 

tify   a   beneficiary,   made   by   testator  8.    See   1    Vict.    c.    26,    §    21,    cited 

himself).  supra;  also  ib.   §   20,  which   requires 

4.  Immaterial  alterations  of  no  ef-  revoking  by   "  destroying."     Under   § 

feet   in   materially   changing    a    will,  21,   the   alteration   made   in   the  will 

543 


§  434 


LAW    OF    WILLS. 


[PAET    IV. 


§  434.  Probate  with  or  without  Interlineations,  etc. 

Wlien  a  will  duly  executed  is  informally  altered  by  the  testator, 
as  by  interlining  a  new  bequest  without  the  statute  attestation  now 
required,  the  legal  effect  as  not  to  make  the  will  void,  but  to  estab- 
lish it  in  probate  as  it  stood  before  the  change  was  made.*  But 
where  interlineations  and  alterations  are  made  in  the  original  will 
so  as  to  conform  with  the  existing  statute,  or  ■are  otherwise  legally 
made,  the  will  with  its  interlineations  and  amendments  should  be 
admitted  to  probate.^  If  a  will  is  altered  after  execution  and 
then  republished  and  confirmed  by  a  codicil,  it  is  enough  to  show 
that  the  alterations  were  made  before  the  execution  of  the  codicil.^ 

On  the  other  hand,  alterations  made  in  a  will  by  a  stranger, 
after  its  due  execution,  and  without  the  testator's  knowledge  or 
sanction,  do  not  affect  the  validity  of  the  testament  in  other  re- 


after  execution  shall  not  be  valid 
unless  they  prevent  the  words  orig- 
inally written  from  being  "  appar- 
ent " ;  that  is  to  say,  apparent  by 
looking  at  the  will.  If  the  oblitera- 
tion was  made  simply  to  strike  out 
or  partially  revoke,  the  obliteration 
is  sufficient  if  it  amounts  to  an  era- 
sure, and  the  change  will  take  effect 
accordingly.  But  where  the  oblitera- 
tion was  made  for  the  purpose  of  al- 
tering the  gift,  and  not  revoking  it, 
and  the  new  gift  cannot  take  effect 
because  the  substituted  words  have 
not  been  properly  attested  as  the  new 
statute  requires,  evidence  mny  be  ad- 
duced alivnde  to  show  what  the  orig- 
inal words  were.  Soar  v.  Dolman,  3 
Curt  121;  2  Curt.  337;  Brooke  v. 
Kent,  3  Moore  P.  C.  334;  1  .Tarm. 
142;  1  Wms.  Exrs.  144,  145.  if  it 
cannot  be  shown  what  those  words 
wore,  probate  will  be  decreed  in  l>lank. 
1  S.  &  T.  238.  And  see  Greenwood's 
Goods    (1892)     P.   7. 

9.  While  our  later  legislation  quite 


discourages  partial  revocation  and 
informal  changes  in  an  executed  will, 
alterations,  erasures,  and  oblitera- 
tions found  in  a  will  are  treated  ac- 
cording to  circumstances.  If  they 
preceded  the  formal  execution,  they 
stand  as  the  final  expression  of  the 
testator's  wishes;  but  if  made  after- 
wards, the  alteration  fails  unless  the 
will  in  its  altered  shape  is  duly  at- 
tested, and  probate  is  granted  as  of 
a.  valid  will,  according  to  its  import 
as  originally  attested.  Schoul.  Exrs. 
§  1084  (Vol.  II);  Wheeler  v.  Bent, 
7  Pick.  61;  Jackson  v.  Holloway.  7 
John.  394;  Prescott  Be,  4  Redf.  (N". 
Y.)  178;  Gardiner  v.  Gardiner.  19  A. 
651,  65  N.  H.  230;  Hesterberg  v. 
Clark,  166  111.  241,  46  N.  E.  734. 
And  see  Myrick  Prob.  128. 

1.  Blewitt  Re,  5  P.  D.  116;  supra, 
§  248;  Ponniman's  Will,  20  Minn. 
245.  18  Am.  Rep.  368. 

2.  Purge  V.  Hamilton.  72  Ga.  568; 
Tyler  v  Merchant  Tailors'  Co,  15 
P.  D.  216. 


>44 


CHAP.    II.] 


ALTERATIOISr    OF    WILLS. 


§   43; 


spects.^  And  in  general,  where  erasures  or  alterations  are  inform- 
ally made  in  a  duly  exccutGd  will,  the  probate  should  be  according 
a3  tlie  will  was  originally  executed  and  witnessed.* 


§  435.  Presumption  as  to  Time  of  Alterations,  etc. ;  Proof. 

The  question  is  sometimes  asked,  at  what  time  alterations  in  a 
will  sihall  be  dated,  where  positive  evidence  is  altogether  wanting. 
Not  without  some  controversy  in  the  courts,  it  appears  at  length 
to  have  been  settled,  that  unattested  and  unexplained  alterations 
upon  the  face  of  a  will  shall  be  presumed  to  have  been  made  after, 
and  not  before  the  execution  of  the  instrument;  and  such  is  the 
rule  a^  now  announced  both  in  England  and  leading  American 
States.^  This  presumption  yields,  however,  to  actual  proof ;  and 
slight  circumstances,  including  the  sense  or  a  testator's  own  decla- 
rations of  intent  before  executing  his  will,  may  establish  the  con- 
trary.®    It  is  unquestionably  proper  that  interlineations  or  altera- 


3.  Grubbs  v,  McDonald,  91  Penn. 
St.  236;  1  Gall.  70;  Morrell  v.  Mor- 
rell,  7  P.  D.  68;  Mclntire  v.  Mcln- 
tire,  162  U.  S.  383,  40  L.  Ed.  1009; 
Diener's  Estate,  67  A.  726,  80  Vt. 
259;  113  N.  W.  149,  79  Neb.  569,  14 
L.  R.  A.  (N.  S.)  259;  Safe  Deposit 
Co.  V.  Thom,  83  A.  45,  117  Md.   154. 

4.  Simrell's  Estate,  154  Penn.  St. 
1893,  26  A.   599. 

In  deciding  whether  words  oblit- 
erated in  a  will  are  apparent,  mag- 
nifying glasses  or  artificial  arrange- 
ment of  light  may  be  used;  but  not  a 
physical  interference  with  the  docu- 
ment, as  by  water,  chemicals  or  tear- 
ing off,  where  there  is  a  risk  of  spol- 
iation. Finch  V.  Combe  (1894)  P. 
191.  See  also  (1899)  P.  36  Watson 
V.  Hinson,   72  N.  C.  72. 

5.  Cooper  v.  Bockett,  4  Moore  P.  C. 
419;  Greville  v.  Tylee.  7  Moore  P.  C. 
320;    Shallcross   v.   Palmer,   16   Q.   B. 

35  5 


747;  16  Q.  B.  745;  1  Wms.  Exrs. 
130;  Wetmore  v.  Carryl,  5  Redf.  (N, 
Y.)  544;  Dyer  v.  Erving,  2  Dem.  (N. 
Y.)    160. 

But  see  Williams  v.  Ashton,  1 
Johns.  &  H.  115,  118,  where  Wood, 
V.  C,  criticises  the  rule  as  thus 
stated,  and  intimates  that  the  moro 
correct  view  would  be,  that  the  onus 
is  cast  on  the  party  who  seeks  to  de- 
rive an  advantage  from  the  altera- 
tion in  the  will,  to  adduce  some  evi- 
dence from  which  a  jury  may  infer 
that  the  alteration  was  made  before 
the   will   was   executed. 

6.  Where  the  date  of  a  will  ap- 
peared to  have  been  changed  from 
1875  to  1873,  but  the  testator  died 
prior  to  1875,  the  change  is  pre- 
sumed to  have  been  made  when  the 
will  was  executed.  Martin  v.  King, 
72  Ala.  354.  Interlineation  of  a  name 
which    manifestly    expresses    the    tes- 


4f) 


§    436  LAW    OF    WILLS.  [PAET    IV. 

tions  of  any  kind  made  before  execution  should  be  noted  in  the 
attestation  of  witnesses,  and  thus  obviate  all  controversj. 

Where  the  will  was  originally  prepared  with  blanks  which  the 
testator  afterwards  filled  up,  it  is  presumed  that  thej  were  filled 
as  they  should  have  been,  before  the  attestation.''  And  as  all 
formalities  are  supposed  to  have  been  rightly  observed,  if  observed 
at  all,  the  mere  circumstance  that  such  blanks  are  filled  with  a 
different  ink  or  in  a  different  handwriting  from  the  body  of  the 
will  does  not  afford  a  presumption  of  unattested  and  inoperative 
alteration.^ 

§  436.  Alteration  in  a  General  sense  expressed  by  Codicil. 

iSTow  to  speak  of  altering  one's  disposition  in  the  general  sense, 
without  confining  ourselves  to  the  physical  change  or  mutilation 
of  the  original  instrument.  The  natural  expression  of  such  al- 
teration, and,  in  view  of  late  legislation,  by  far  the  safer  one,  is  by 
means  of  a  codicil  or  codicils  duly  executed  like  any  other  will ; 
so  that  the  original  undefaced  will,  together  with  such  addition 
or  additions,  shall  stand  in  force  as  one's  full  last  testament  after 
his  death,  like  a  statute  with  its  later  amendments.*  We  have 
already  defined  the  codicil,  whose  proper  office,  as  elsewhere  inti- 
mated, is  to  add  to  or  amend  a  will  by  way  of  postscript,  and  not 
to  repeal  it  utterly.^  Such  an  instrument  being  to  all  intents  a 
''  will,"  it  is  to  be  executed  and  held  subject  to  repeal  like  any  other 
testament. 

tator's  original  intention  is  presumed  9.  Supra,  §§  7,  8. 

to   have   been    made   before    excution.  1.    lb.;    Fuller    v.    Hooper,    2    Ves. 

6  Dem.    (N.  Y.)    162.  Sen.    242;    Evans   v.    Evans,   17   Sim. 

As    to   the    testator's    declarations,  108.      In     ancient    times     "  codicils " 

and  how  far  they  are  admissible    on  might    be     made,    as    it   appears,    by 

this  point,  see  Doe  v.  Palmer,   16  Q.  those   who   died   without  testaments; 

B.  747;  Williams  v.  Ashton,  1  Johns.  but  this  was  not  usual;   and   in  our 

&    H.    115.     And   see  supra,  §§   401-  modern    acceptation,     the     codicil    is 

40r5.  part  of  a  will,  for  its  explanation  or 

7.  Birch  v.  Rirch,  1  Rob.  675.  alteration,  or  to  add  to  or  substract 

8.  Orovillo  v.  Tylee,  7  Moore  P.  C.  from  the  former  disposition.  1  Wms^ 
:J20;  2  Rob.  192;   Ilindraarch's  Goods,  Exra.  8;  Swinb.  pt.  1,  §  6,  pi.  5,  9. 

L.    R.    1    P.  &   D.    307. 

646 


CHAP.    II.]  ALTEKATION    OF    WILLS.  §    436 

§  437.  Codicil  does  not  revoke  Will  except  so  far  as  Necessary. 

Many  testamentary  causes  arise  where  the  effect  of  one  or  more 
codicils  upon  a  prior  will  has  to  be  considered ;  ^  and  it  is  a  funda- 
mental maxim  that  no  codicil  shall  revoke  a  prior  will  more  than 
is  absolutely  necessary  at  all  events  to  give  its  own  provisions 
effect ;  unless  it  contains  an  express  clause  of  full  revocation.^  The 
decisions  which  turn  upon  this  principle  are  very  num^-Tous  and 
need  not  be  stated  at  length ;  ^  being  quite  prolix  for  the  most  part 
and  involving  the  construction  of  language  as  variable  as  the  de- 
tails of  mental  intention  itself. 

Even  though  the  codicil  should  profess  to  make  a  different  dis- 
position of  the  whole  estate,  the  principle  above  stated  is  the  natu- 
ral .and  controlling  one.^  And  words  and  expressions  contained 
in  the  codicil  may  by  construction  restrict  its  operation.  Thus,  it 
is  held  that  a  declared  purpose  therein  to  alter  the  will  in  one  or 
more  stated  respects,  implies  that  it  is  not  altered  in  other  respects.^ 
And  that  a  specific  gift  in  a  will  is  not  revoked  by  a  general  gift  in 
the  codicil.^  And  that  a  general  expression  in  the  codicil  must 
be  confined  to  its  meaning  in  the  will.^  And  that  a  clear  gift  in 
the  will  is  not  revoked  by  vague  or  doubtful  expressions  in  the 
codicil.^     And  that  a  codicil  will  not  operate  as  a  revocation  of  a 

2.  Supra,  §  409.  595;    Holden    v.    Blaney,    119    Mass. 

3.  The  testator  himself  commonly  421;  Home  v.  Noble,  172  U.  S.  383, 
produces  whatever  uncertainty  arises  43  L.  Ed.  486;  McGauly  v.  McGauly, 
by  framing  the  codicil  without  a  clear  39  So.  677  (Ala.)  ;  Williams  v. 
idea  of  what  his  previous  will  con-  Miles,  94  N.  W.  705,  68  Neb.  463; 
tained.     See   1   Jarra.    176.  Lane    v.    Hill,    44    A.    393,    68    N.    H. 

4.  1  Jarm.  Wills,  176,  and  cases  275,  73  Am.  St.  Rep.  59'l;  Rowan's 
cited;  Duffield  v.  Duffield,  3  Bligh.  N.      Estate,  83  A.  429,  234  Penn.  584. 

S.   261;    Beckett   v.   Harden,   4   M.   &  5.   Harwood    v.    Goodright,    Cowp. 


Sel.  1;  Evans  v.  Evans,  17  Sim.  86 
Tilden  v.  Tilden,  13  Gray,  103,  108 
Wetmore  v.  Parker,  52  N.  Y.  450 
Lemage  v.  Goodban,  L.  R.  1  P.  D.  57 


87;    14   Beav.   583. 

6.  Quincy  v.  Rogers.  9  Cush.  291. 

7.  Arrowsmith's   Trust,   2   D.   F.  & 
J.  474. 


Brant   v.   Wilson,    8   Cow.    56;    Johns  8.   Clarke,  v.   Butler,   1  Mer.  304. 

Hopkins    University   v.   Pinckney,    55  9.   Randfield  v.   Randfield,   8   H.   L. 

Md.   365;    Bradley  v.   Gibbs.   2   Jones  Cas.   235:    Joiner   v.   Joiner,   2   Jones 

Eq.   13;    Clarke    v.    Ransom,  50   Cal.  Eq.   68;    55   Md.   365;    3   Sim.   24;     1 

547 


§    438  LAW    OF    WILLS.  [PAET    IV. 

previous  will  beyond  the  clear  import  of  its  language,  nor  upon, 
any  suggestion  of  repug-naucy,  save  so  far  as  may  be  necessary  to 
give  that  codicil  effect.^  But  all  artificial  rules  like  these  should 
bend  to  the  real  intention  of  the  testator,  as  gathered  from  the 
whole  face  of  the  paper,  aided  in  doubtful  cases  by  proof  aliunde. 

Whether  a  certain  codicil  confinns  an  altered  will  as  originally 
written  or  as  altered,  is  a  matter  of  construction  accordingly,^  For 
a  codicil  frequently  confirms  expressly  the  will  except  for  its  own. 
changes  of  disposition. 

Other  rules  of  construction,  equally  pliable,  may  be  cited  in 
this  connection.  Thus  a  gift  by  codicil  "  instead  of,"  or  "  in  lieu 
of,"  what  the  will  contains,  means  substitution,  which  may  or  may 
not  be  total,  according  to  circumstances.^  The  revocation  by  codicil 
of  one's  appointment  in  a  certain  capacity,  as  trustee,  for  instance, 
where  the  will  made  him  both  trustee  and  executor,  does  not  carry 
both  offices,  nor  affect  a  legacy  bestowed  upon  him  from  other  con- 
siderations.* But  where  a  life  interest  is  given,  and  a  special 
power  of  appointment  over  the  property  besides,  the  subsequent  re- 
vocation of  all  gifts  "  in  favor  of  "  the  donee,  revokes  the  power  as 
well  as  the  life  interest.^  The  disposition  of  the  courts  to  gL-n- 
eralize  while  construing  the  expression  of  some  particular  will 
must  not,  however,  be  taken  wirh  too  implicit  a  confidence. 

§  438.  Later   Provisions,   whether   by   Way  of   Substitution   or 

Addition. 

Whether  provisions  under  a  later  will  or  codicil  are  intended  for 

substitution,  or  as  something  additional  and  cumulative    to    the 

gift  by  the  earlier  one,  mu^t  be  determined  by  comparing  the  in- 

Jarm.  181;  Kiver  v.  Oldlicld,  4  DcG.  3.  March  v.  Marchant,  6  M.  &  Gr. 

&  J.  30;  Payne  Re,  W.  N.   (1887)   52;  813;  5  Jur.  X.  S.  12;  Hill  v.  Walker, 

190  Penn.  St.   35,  42  A.   381.  K.     &     J.     168;    1    Jarm.    177,    178; 

1.  Viele  V.  Kceler,  129  N.  Y.  190,  Brownell  v.  De  Wolf,  3  Mason,  456. 
29  N.  E.  78;  and  .see  Home  v.  Noble,  4.  1  Jarm.  Wills,  178;  14  Sim.  89; 
173  U.  S.  383,  45  L.  Ed.  486.  Burgess    v.    Burgeas,    1    Coll.    367;    5 

2.  Hay  Re   (1904)     1  Ch.  317.  And  Jur.   N.    S.   687. 

see  Griggs  v.  Griggs,  70  N.   E.   1099,  5.  Brough  Re,  38  Ch.  D.  456. 

178  N.  Y.  S.  70. 

548 


CHAP.    11.]  ALTERATION    OF    WILLS.  §    439 

struments  to  discover  their  true  intent.^  But  in  case  of  doubt  an 
additional  gift  is  presumed  rather  than  revocation ; ''  unless,  in- 
deed, resort  may  be  had  to  parol  evidence  outside  the  instruments 
for  assisting  the  conclusion.^ 

In  general,  the  different  parts  of  a  will,  or  of  a  will  and  codicil, 
should  be  reconciled  if  possible  and  receive  a  fair  and  consistent 
interpretation.^  But  where  there  is  a  real  discrepancy  in  the 
gifts  between  will  and  codicil,  the  codicil  should  prevail  in  prefer- 
ence.^ A  codicil  might  by  its  terms  vary  all  former  dispositions 
and  yet  by  its  silence  leave  the  original  choice  of  executors  in 
force.^ 

§  439.  Whether   Revocation   of   the   Codicil  takes   Effect   upon 
the  Will;  and  Vice  Versa. 

The  general  effect  of  one's  later  and  inconsistent  will  upon  his 
earlier  one  has  already  been  discussed ;  ^  as  also  the  inferences  to 
be  drawn  where  of  two  inconsistent  wills  the  testator  repeals  the 
later  without  the  earlier  one.*  The  testator's  intention  is  usually 
followed,  if  it  may  be  gathered  from*  the  face  of  the  whole  tran- 
saction and  legislation  does  not  impede.  Thus,  where  a  father, 
angry  with  his  son,  cut  him  off  with  a  shilling  by  both  will  and 
codicil,  and  then  after  becoming  reconciled  to  him,  cancelled  the 
primitive  clause  in  the  codicil,  but  not  in  the  will  (where  it  con- 
sisted of  interlined  words),  the  court  extended  the  cancelling  act  to 
the  will  as  far  as  possible.^ 

Where,  on  the  other  hand,  the  will  has  been  destroyed  by  the 
testator,  but  the  codicil  is  preserved  which  professed  to  be  part 
of  the  will,  the  question  arises  whether  the  revocation  of  the  will 

6.  1  Wms.  Exrs.  167,  185.  supra,   §§    406,  407;    (1895)    P.    186. 

7.  Bartholomew  v.  Henley,   3   Phil-  2.  Newcomb  v.  Webster,  113  N.  Y. 
lim.     316.     See     Higgins     v.     Eaton,      191,  21  N.  E.  77. 

188    F.   938.  3.  Supra,   §   417. 

8.  Supra,  §  423;  Part  VI.  c.  3,  post.  4.  Supra,  §  413. 

9.  Part  VI.,  post;  Colt  v.  Colt,  32  5.  Utterson  v.  Utterson,  3  V.  &  B. 
Conn.    422.  122. 

1.    See   Towry   Re,    41    Ch.    D.    64; 

549 


§    439  LAW    OF    WILLS.  [PART    IV. 

operates  hj  inference  to  revoke  tlie  codicil  also.  The  answer  de- 
pends mainly  upon  the  contents  of  the  several  papers  and  the  in- 
tent to  be  fairly  gathered  from  the  face  of  the  papers,  aided,  if 
need  be,  by  extrinsic  evidence.  If  the  provisions  of  the  codicil 
were  so  dependent  on  the  will  as  not  fairly  to  stand  apart  and  in- 
dependently of  it,  the  destruction  of  the  will  carries  that  of  the 
codicil  likewise.^  But  if  the  provisions  in  the  codicil  were  inde- 
pendent of  the  will  and  capable  of  subsisting  separately,  the  in- 
clination is  to  declare  the  codicil  unrevoked,  unless  from  other  cir- 
cumstances a  different  intention  may  be  gathered.^  Evidence  of 
actual  intent  may,  however,  clear  such  controversies.  Thus,  where 
a  testator  who  had  executed  a  codicil  at  the  foot  of  his  will,  cut  off 
his  signature  from  the  will  only,  this  was  held  to  revoke  the  codicil 
also,  on  proof  that  such  was  the  testator's  intention.^  On  the  other 
hand,  where,  at  the  testator's  death,  the  sole  testamentary  papers 
found  were  a  duly  executed  codicil  and  two  drafts  of  wills,  as  to 
the  execution  or  revocation  of  which  there  was  no  evidence,  th,e 
codicil  was  by  itself  admitted  to  probate,  as  still  unrevoked ;  and 
this  notwithstanding  that  the  codicil  was  dependent  on  a  missing 
will  to  which  it  belonged,  and  could  not  be  construed  without  it.* 

6.  I  Jarm.  Wills,  139;  Usticke  v.  is  perfectly  true  that  the  presump- 
Bawden,  2  Add.  116.  The  English  tion  of  law,  when  a  testamentary 
spiritual  courts  before  1  Vict.  c.  26,  document  in  the  possession  of  the  de- 
appear  to  have  favored  such  a  con-  ceased  is  not  forthcoming  at  his 
struction,  in  the  absence  of  proof  death,  is  that  it  was  destroyed  with 
showing  a  contrary  intention.  lb.;  the  intention  of  revoking  it.  But  to 
2  Add.  229;  Coppin  v.  Dillon,  4  go  further  and  to  hold  that  the  will 
Hagg.  369.  was   destroyed  with   the  intention  to 

7.  Tagart  v.  Squire,  1  Curt.  289 ;  revoke,  because  it  is  not  found  among 
1  Jarm.  Wills,  139;  Greig  Re,  L.  R.  the  deceased's  papers,  and  then  to  say 
1    P.  &  D.  72.  that   the   codicil    which    is    preserved 

8.  Bleckley,  Goods  of,  8  P.  D.  169.  among  the  deceased's  papers  was 
And  see  Greig  lie,  L.  R.  1  P.  &  D.  therefore  a  document  which  the  de- 
72.  ceased  intended  to  destroy  also,  is,   I 

9.  Gardiner  v.  Courthope,  12  P.  D.  think,  going  beyond  the  bounds  au- 
14.  This  decision  proceeded  like  thorized  by  the  law."  Butts,  J.,  ib. 
others  upon  the  principle  of  the  prob-  17. 

able   intention   of  the  deceased.     "  It 

550 


CIIAr.    II.]  ALTEKATION    OF    WILLS.  §    440a 

The  usual  and  natural  plan  is  of  course  to  revoke  by  suitable 
act  both  will  and  codicil  simultaneously,  where  such  is  the  testa- 
tor's real  purpose,  and  thus  leave  nothing  in  the  transaction  to 
doubtful  inference. 

§  440.  Misrecital  of  Will  in  Codicil;  their  Mutual  Comparison. 

Tbe  mere  misrecital  of  a  will  by  a  codicil  is  inoperative,  and 
will  not  modify  the  dispositions  of  the  original  instrument;  but 
an  erroneous  recital  of  a  will,  coupled  with  or  followed  by  a  clear 
indication  that  some  modified  or  inconsistent  disposition  is  in- 
tended by  the  codicil,  operates  to  modify  or  alter  the  earlier  gifts.^ 

It  often  happens  that  an  ambiguity  in  a  will  is  controlled  and 
gTiided  by  the  recitals  of  a  codicil.^  And  in  general  the  reference 
from  the  one  instrument  to  the  other  may  be  useful  for  explaining 
the  testator's  full  and  final  purpose. 

When  a  testator  by  a  codicil  confirms  his  will,  the  will  together 
witli  all  previous  codicils  is  taken  to  be  confirmed.  It  is  sometimes 
said  that  a  codicil  confirming  a  will  makes  the  will  for  many  pur- 
poses to  have  the  date  of  the  codicil ;  but  this  is  no  technical  rule 
to  override  the  true  intent  of  the  transaction  and  its  force  is  lim- 
ited accordingly.^ 

§  440a.  Probate  of  Codicils. 

The  general  rule  for  proving  codicils  is  the  same  as  for  proving 
a  will.  Will  and  codicil,  when  separately  executed,  may  be  sepa- 
rately proved ;  but  the  rule  of  convenience  is  sometimes  applied, 
that  proof  of  a  codicil  establishes  the  will  without  further  proof, 
when  written  on  the  same  paper  or  on  another  paper,  if  clearly 

1.  Margitson  Re,  48  L.  T.  172.      A  dissenting).     Cf.    Gibson    v.    Gibson, 

paper,    bearing    the    same    date   with  28  Grntt.  44. 

the     will,     similarly     executed,     and  2.  Darley  v.  Martin,  13  C.  B.  683; 

rpla^ed    in    the   isame    envelope,    has  1  Jarm.  532.    See  Part  VI.,  post. 

been  pronounced  a  codicil,  though  it  3.   Hopwood   v.   Hopwood,   7   H.   L. 

made  no  reference  in  language  to  the  728;  Biddulph  v.  Hole,  15  Q.  B.  848; 

will.    Perkins  v.  Perkins,  84  Va.  358,  30  Neb.   149. 
45  E.   833    (one  of  the  three    judges 

551 


§  440a  LAW  OF  WILLS.  [part  IV. 

and  unmistakably  referring  to  the  will  so  as  to  preclude  all  doubt 
of  its  identity.*  Codicils  usually  receive  probate  with  tbe  will 
itself ;  but  a  codicil  which  refers  to  a  previous  will  may  be  granted 
alone,  where  no  trace  of  the  will  can  be  found ;  ^  and  as  to  the  gen- 
eral bearing  of  codicils  upon  one  another  or  upon  an  original  will, 
the  testator's  intention  manifested  in  the  several  instruments 
should  be  given  fair  operation  if  possible.® 

4.  §  448a,  post.  substitute     for     another,    (1895)      P. 

5.  Clements's     Goods      (1892)       P.      186.    And  see  §  448a;  Kelly's  Estate, 
254.  84  A.   593,  236  Penn.  54;   Vol.  II,   §§ 

6.  See   one   codicil   intended    as    a      1060,  1082. 

552 


CHAP.    III.]  EEPUBLICATION    OF    WILLS.  §    442 


CHAPTEE  III. 

REPUBLICATION   OF  WILLS. 

§  441.  Republication  defined;  Acts  Express  and  Implied, 

Bj  tlie  republication  of  a  will  is  sigTiified  that  act  done  by  a  tes- 
tator from  which  the  law  concludes  that  an  instrument  once  re- 
voked was  intended  by  him  to  revive  and  operate  as  his  last  will. 
The  act  being  sufficient  in  a  legal  sense,  his  new  intention  is  per- 
mitted to  operate  accordingly.-^ 

A  revoked  will  may  be  republished  in  one  or  two  ways:  (1) 
by  its  actnal  re-execution  in  effect,  which  constitutes  an  express 
republication  of  the  will ;  ( 2 )  by  less  formal  acts  from  which  re- 
publication may  be  implied,  or  as  it  is  sometimes  called,  by  con- 
structive republication.^  These  methods  we  proceed  to  examine 
in  turn. 

§  442.  Express  Republication;   Statutes  requiring  Re-execution 
or  a  Codicil,  etc. 

In  England,  at  the  present  day,  and  doubtless  to  a  considerable 
extent  by  the  force  of  local  legislation  in  the  United  States,  ex- 
press republication  of  a  will  is  the  only  kind  recognized.  There 
must  be  an  actual  re-execution  of  the  original  will;  or,  what  is 
tantamount  to  this,  the  due  execution  of  some  codicil  which  shows 
an  intention  to  revive  the  instniment. 

This  statute  rule  for  a  long  time  affected  only  devises  of  real 
estate;  wills  of  personalty  being  capable  of  implied  and  informal 
republication,  as  they  were  of  informal  execution  in  the  first  place. 
The  Statute  of  Frauds,  which  made  a  formal  execution  essential 
for  all  wills  of  land,^  declared,  as  a  part  of  the  same  scheme  of 
policy,  that  no  will  of  lands  should  be  republished,  except  by  its 

1.  See  Bouv.  Diet.  "  Republication."  2.  1  Jarm.  Wills,  193 ;   Bouv.  Diet. 

To  "revive"   a  will   is  used   as   syn-      "  Eepublication  ";   1  Wms.  Exrs.  205. 
onymous  with  "  republish."      1  Wms.  3.   Supra,   §§   353,   253. 

Exrs.  305;  Act  1  Viet.  c.  26,  §  22. 

553 


§    443  LAW    OF    WILLS.  [PAET    IV. 

re-execution  in  the  presence  of  three  witnesses,  or  by  a  codicil  dulv 
executed  in  like  manner.  For  upwards  of  a  century  and  a  half 
longer/  wills  of  personal  property  continued  capable  of  informal 
revival,  when  the  new  Wills  Act  of  Victoria  so  extended  the  for- 
malities of  execution  as  to  embrace  wills  of  whatever  property,  and 
at  the  same  time  cut  the  specious  doctrine  of  informal  republica- 
tion at  the  root.  After  January  1,  1838,  no  will  or  codicil,  or  any 
part  thereof,  which  had  been  in  any  manner  revoked,  was  to  be  re- 
vived otherwise  than  by  its  re-execution,  or  by  a  codicil  executed 
with  the  full  statute  formalities,  and  showing  an  intention  to  revive 
the  same.^ 

In  the  United  States  it  has  also  been  held,  by  construction  of 
local  enactments,  more  or  less  positively  worded,  that  the  republi- 
cation of  a  will  is  essentially  at  the  present  day  the  making  of  a 
new  will,  and  the  usual  fo'rmalities  of  execution  must  be  followed.® 


§  443.  The  Same  Subject. 

Legislation  of  this  tenor  excludes  all  other  means  of  showing 
one's  intention  to  revive  his  will.  Destniction  of  the  revoking  in- 
strument, as  by  burning,  tearing  or  cutting,  is  not  sufficient;  nor 
do  the  rules  of  proof  in  revocation  aiford  a  criterion  for  proving  re- 
publication.'^    As  for  the  execution  of  a  codicil  which  (agreeably 


4.  From  1677  to  1837,  to  be  more  622,  125  Am.  St.  Rep.  759,  14  L.  R. 
precise.  A.    (N.  S.)    937;    Safe  Deposit  Co.   v. 

5.  Act  1  Vict.  c.  26,  §  22;  Appen-  Thorn,  83  A.  45.  117  Md.  154;  Black- 
dix,  post.  This  section  proceeds  to  ett  v.  Ziegler,  133  N.  W.  901,  153 
state  that  "  when  any  will  or  codicil  Iowa,  344.  In  Pennsylvania  since 
which  shall  be  partly  revoked,  and  legislation  in  1833,  a  new  rule  has  ap- 
afterwards  wholly  revoked,  shall  be  plied.  Gable  v.  Daub,  40  Penn.  St. 
revived,    such    revival    shall    not    ex-  217,  230. 

tend  to  so  much  tliercof  as  shall  have  7.  Major  v.  Williams,  3  Curt.  432. 

been  revoked  before  the  revocation  of  As   to   the    former    nilc    of   construc- 

thc    whole    thereof,    unless    an    inten-  tively    reviving     an     earlier    existing 

tion  to  the  contrary  shall  be  shown."  will     by     destroying    the    later     one 

6.  P)arker  v.  Bell,  46  Ala.  218;  (which  this  legislation  changes),  see 
Penniman's    Will,    20    Minn.    245,    18  supra,   §§    413-415. 

Am.    Rep.    3G8;    28    R.    I.    523,   68    A. 

554 


CHAP.  III.] 


KEPUBLICATION^    OF    WILLS. 


§  443 


to  the  terms  of  the  English  statute)  shows  "  an  intention  to  revive," 
that  intention  must  appear  on  the  face  of  the  codicil  with  reason- 
able certainty,  and  is  not  to  be  gathered  from  extraneous  proof.* 
No  particular  words,  however,  are  necessary  to  be  used  in  a  codicil 
in  order  to  effect  a  republication  of  the  will  to  which  it  is  an- 
nexed ;  *  and  the  execution  of  the  codicil  dispenses  with  re-execu- 
tion of  the  will  itself.^ 

With  regard  to  the  proper  method  of  re^executing,  little  remains 
to  be  said.  The  testator  need  not  sign  the  will  again;  for  if  he 
acknowledges  his  signature  before  the  required  number  of  wit- 
nesses with  the  proper  formalities  this  is  good  for  either  re-execu- 
tion or  an  original  execution.^  Publication  and  republication  call 
for  essentially  the  same  proof.^  Generally  speaking,  it  is  a  good 
republication  for  a  testator  to  call  witnesses  of  the  statute  number 
to  such  republication,  declaring  the  paper  to  contain  his  last  will, 
and  then  causing  the  witnesses  to  subscribe  their  names  by  way  of 
attesting  the  transaxjtion.* 


8.  Lord  Penzance  laid  down  the 
rule  at  some  length  in  Steele's  Goods, 
L.  R.  1  P.  &  D.  575;  holding  that  the 
reference  in  a  codicil  by  date  to  a  re- 
voked will  was  insufficient  to  revive 
it,  without  evidence  on  the  face  of 
the  codicil  that  the  testator  so  in- 
tended. But  semble,  express  words  of 
such  intention  may  be  dispensed  with, 
if  the  disposition  made  by  the  codicil 
is  inconsistent  with  any  other  inten- 
tion,    lb.     See  §  447. 

Reference  to  ''  my  said  will,"  etc., 
may  well  identify  the  will  to  be  re- 
vived by  codicil,  unless  it  appears 
that  there  was  more  than  one  will 
of  the  testator  in  existence.  2  Notes 
Cas.  406;  Terrible  Re,  1  Sw.  &  Tr. 
140.  See  further,  1  Robert.  583;  3 
Robert.  318;  Marsh  v.  Marsh,  1  Sw. 
&  Tr.  528.  In  McLeod  v.  McNab, 
App.   Cas.    (1891)     471,   a  codicil  re- 


vived by  reference  a  former  will; 
and  it  was  held  that  the  will  was  no 
longer  affected  by  the  partial  revo- 
cation made  by  an  intermediate 
codicil. 

9.  Corr  v.  Porter,  33  Gratt.  278. 

1.  Brown  v.  Clark,  77  N.  Y.  369. 
To  "  confirm  "  in  such  a  codicil  meansi 
to   "revive."    App.   Cas.    (1891)    471. 

2.  See  supra,  §§  321-325.  See  Kohn's 
Estate,  137  N.  W.  735,  172  Mich. 
342  (where,  in  the  case  of  an  altered 
will,  the  testator  retraced  her  name 
with  a  dry  pen,  after  which  new  wit- 
nesses signed  in  due  form  in  her 
presence) . 

3.  Musser  v.  Curry,  3  Wash.  481 ; 
Simpson  Re,  56  How.  Pr.  (N.  Y.) 
125;  Carey  v.  Bauglm,  36  Iowa,  540, 
14  Am.  Rep.  534. 

4.  1  Wms.  Exrs.  206,  Am.  Ed.  See 
also  Dunn  v.  Dunn.  L.  R.  1  P.  &  D. 


555 


§  444  i^w  OF  WILLS.  [part  IV. 

§  444.  Implied  Republication, 

Next,  as  to  implied  republication,  for  which,  it  is  plain,  little 
footing  is  found  under  our  modem  enactments.  Possibly  there 
are  American  codes  which  still  leave  the  law  of  republication  as 
it  stood  in  England  prior  to  1838 ;  and  in  English  or  American 
jurisdictions,  moreover,  wills  of  personal  property  made  before  the 
change  of  policy  took  effect,  may  still  be  offered  for  probate.  At 
all  events,  the  once  honored  theory  of  reviving  a  testament  by  in- 
formal acts  is  worthy  of  a  professional  student's  curiosity. 

From  1677  to  1837  in  England,  and  down  to  a  period  varying 
not  greatly  from  the  latter  date  in  most  parts  of  the  United  States, 
implied  republication  might  operate  upon  wills  of  personalty, 
though  excluded  as  to  devises  of  land  by  the  Statute  of  Frauds,  in 
pursuance  of  which  attestation  became  an  essential  part  of  the 
original  execution.  A  will  of  the  former  description  required  no 
other  formality  than  writing;  and  once  revoked  it  needed  no  re- 
execution  or  solemn  codicil  to  revive  it;  but  republication  might 
be  effected  by  an  unattested  codicil  or  other  writing,  and  even  by 
the  mere  parol  acts  or  declarations  of  a  testator  whose  intention 
could  be  thus  informally  established.^  Such  appears  to  have  been 
the  doctrine  of  our  law  from  the  earliest  times,  so  far  as  wills  of 
chattels  or  personal  property  were  concerned ;  and  even  a  devise 
of  land,  made  under  the  old  Statute  of  Wills,  prior  to  the  act  of 
29  Charles  II.,  permitted  of  a  parol  revival  in  like  manner.^  After 
the  Statute  of  Frauds  went  into  eft'ect,  the  republication  of  a  will 
of  real  estate  could  not  be  proved  by  parol ;  but  as  to  wills  of  per- 
sonalty the  law  continued  as  before.^ 

277;   Brown  v.   Clark,   77  N.  Y.   369.  29  Car.  II.  §  19.  might  involve  a  pro- 

The  statute  of  New  York  on  this  sub-  hibition     of     nuncupative    republica- 

ject    is    peculiar.    See   §   326,  suprxi ;  tions,  has  no  force.    2  Cas.  temp.  Lee, 

Simpson  Re,  56  How.  Pr.   125.  494;    1  Wms.  Exrs.  66,  68,  203. 

As    to    republishing    a    conditional  6.   Jackson   v.  Hurlock,   Arab.   494; 

■will  which  lias  failed,  by  re-exccution,  Cro.    Eliz.    493 ;    Alford    v.    Earle,     2 

etc.,  see  supra.  §§  287,  288.  Vern.  209;    1   Wms.  Exrs.  207. 

5.   1   Wms.   Exrs.  206,  207.  The  ob-  7.  See  Cogdell  v.  Cogdell.  3  Desau. 

jeotion,   Komctirnf's  suggested,  that  the  346;   Havard  v.  Davis,  2  Binn.  425. 
prohibition    of    nuncupative   wills     in 

556 


CHAP.    III.]  EEPUBLICATION    OF    WILLS.  §    445 

§  445.  The  Same  Subject:    Oral  Instances  cited. 

A  will  long  laid  aside  and  so  defaced  by  vermin  or  the  natural 
elements  that  a  court  might  otherwise  have  supposed  it  revoked 
once  and  for  all,  can  accordingly  under  the  old  doctrine  receive 
new  force  by  later  acts  and  words  of  the  testator  showing  an  intent 
that  it  shall  operate;  though  this  may  have  been  by  virtue  of  re- 
publishing or  as  having  never  in  fact  been  revoked.^  A  cancelled 
or  obliterated  will  which  remained  legible  might  also  be  revived 
by  words  and  signs  of  the  testator  showing  that  he  meant  it  to 
operate  notwithstanding.^ 

But  the  intention  to  revive  or  republish  one's  will  of  personalty, 
or  treat  it  as  in  full  existing  force,  must  have  consistently  appeared 
on  all  the  proof;  and  where  the  face  of  the  transaction  imported 
an  opposite  conclusion,  direct  and  unequivocal  evidence  of  intent 
was  required ;  mere  declarations  of  the  testator  being  treated  as  in- 
sufficient. As,  for  instance,  where  two  inconsistent  wills  were  left, 
or  a  later  one  with  a  clause  expressly  revoking  the  earlier  one,  both 
being  preserved  together.^  For  the  attempt  to  dispute  the  plain 
effect  of  writings  by  oral  or  less  solemn  testimony  is  to  be  dis- 
eouraged.  iSo  that,  after  all,  the  chief  decisions  favorable  to  oral 
republication  seem  to  have  been  rendered  where  the  facts  left  it 
in  doubt  whether  the  will  had  ever  been  revoked,  and  theories  of 
non-revocation  or  revival  led  to  the  same  legal  result,  nameiy,  the 
establishment  of  the  will  propounded  for  probate.  Under  all  cir- 
cumstances, the  facts  should  have  consisted  with  the  intent  of  re- 
publishing, or  at  least  of  declaring  the  will  to  be  in  present  force.^ 

8.  Braham  v.  Burchell,  3  Add.  264.      2    Conn.     67;     Jackson    v.    Potter,   9 

9.  Slade  v.  Friend,  cited  in  2  Cas.      Johns.   312. 

temp.  Lee,  84;   Brotherton  v.  Hellier,  2.  A  testator  was  searching  for  an- 

2   Cas.  temp.  Lee,  55;    1  Wms.  Exrs.  other     paper,    and    one   who    assisted 

211.     But    qu.    whether    a    will    com-  him    took   up    the    will     by    mistake, 

pletely  destroyed  by  way  of  revocation  whereupon   the   testator   casually   ob- 

could    be    republished  by  oral   words  served,  ''That  is  my  will";   this  was 

and  acts.  held  by  Lord  Hardwick  insufficient  to 

1.  Daniel     v.     Nockolds,     3     Hagg.  show  ammus  repuhlicandi.     Abney  v. 

777;  Stride  v.  Cooper,  1  Phillim.  336,  Miller,  3  Atk.  599. 
per  Sir  John  Nicholl;  Witter  v.  Mott, 

557 


§    4:46  LAW    OF    WILLS.  [PAKT    IV^ 

And  in  the  United  States,  several  of  the  older  decisions  announce 
the  rule  that  a  will  once  revoked  by  a  written  declaration  cannot 
be  republished  bv  parol.^ 

T^Tiere  there  is  no  real  revocation  of  a  will,  but  rather  a  sus- 
pended intention  in  the  testator's  mind  as  between  various  wills  he 
has  duly  executed,  the  practical  effect  of  his  final  choice  among 
them  is  favorably  regarded  in  the  probate.* 

§  446.  The   Same   Subject:    Oral  Revival  after  Revocation  by 
Act  of  Law. 

The  effect  of  oral  revival  where  the  will  has  been  revoked  by  act 
of  law  may  here  be  noticed.''  The  will  of  a  woman,  as  we  have 
seen,  ceases  to  operate  on  her  subsequent  marriage;  and  although 
she  should  survive  her  husband  the  will  remains  inoperative  with- 
out a  republication.^  The  question  then  arises  whether  informal 
republication  upon  her  widowhood  gives  new  operation  to  the  will, 
aside  from  legislative  restriction.  It  is  decided  in  the  English 
ecclesiastical  courts  that  it  does :  that  her  recognition  of  the  revoked 
will  after  her  husband's  death  may  be  by  words  and  conduct.^     But 

3.   Witter   v.   Molt,     2     Conn.     67;  the  first  will  was  never  fully  revoked. 

Jackson    v.    Potter,     9     Johns.     312;  4.  §  415,  supra.  In  Williams  v.  Wil- 

Carey   v.    Baughn,    36    Iowa,    540,    14  Hams,  142  Mass.  515,  the  final  choice 

Am.  Rep.   534;   Love  v.  Johnston,   12  of  the  testator  as  between  three  wills 

Ired.   355.  he  had  fully  executed  was  made  clear 

On    the   other    hand,   circumstances  to  the  court.     He  had  destroyed  the 
of  intent  are  favored  in  some   of    our  first  and  third  and  preserved  the  sec- 
cases,  as  constituting  an  oral  revival  ond  at  his   death.    This  was  held  to 
sufficient    for    all    practical    purposes.  sufficiently  revive  the  second  will  for 
Thus,   where    a    testator    executed   a  probate   without   further    evidence   of 
second    will,    supposing    at    the    time  republication.    Here,  semhle,  the   see- 
that   his   first   will   was   lost,   and   he  ond  will   had   not  been  fully   revoked 
subsequently   found  the  first,  and  de-  by  the  execution  of  the  third, 
.stroyed  the  second,  declaring  that  he  5.    Supra,    §    424. 
preferred    the    first,   the     latter     may  6.   1   Cas.  temp.  Lee.   513;   Long  v. 
properly    be     admitted      to     probate.  Aldred,    3    Add.    48;    Wollaston    Re, 
Marsh  v.  Marsh,  3  Jones  L.  77.       We  12  W.  R.  18;  supra.  §  424. 
here  suppose  that  no  local  statute  is  7.   Miller   v.   Brown,   2   Hagg.   209; 
transgressed  by  the  decision.    Semble,  supra,  §   424. 
that   under    circumstances    like   these 

nno. 


CHAP.    III.]  EEPUBLICATION    OF    WII.X,S.  §    44T 

this  doctrine  receives  no  extended  favor.  The  will  of  a  woman 
which  became  legally  revoked  by  her  subsequent  marriage  acquires 
no  validity  at  her  predecease,  though  her  sundving  husband  assent 
to  its  probate.^  ]^or  is  a  will,  revoked  by  inference  of  law  on  the 
subsequent  birth  of  a  (jhild,  or  on  subsequent  marriage,  to  be  con- 
sidered as  republished  on  merely  parol  proof,  whore  the  local  stat- 
ute requires  all  wills  to  be  formally  subscribed  and  attested,  or 
where  publication  is  an  act  subjected  by  local  law  to  written  solem- 
nities.' An  express  revival  of  the  will  of  a  man  or  woman  which 
has  been  legally  revoked  by  subsequent  marriage,  or  by  marriage 
and  the  birth  of  a  child,  or  by  birth  of  a  child  alone  (a.s  legislation 
may  require)  is  the  desirable  mode  in  these  later  times;  and  exe- 
cuting a  codicil  to  that  purport  accomplishes  usually  the  result  a^ 
thoroughly  as  would  the  re-execution  of  the  revoked  will  itself, 
provided  the  statute  formalities  be  pursued.^  Generally  speaking, 
wherever  a  will  is  revoked  by  legal  inference  from  a  change  in  the 
testator's  condition,  a  later  testamentary  writing  duly  executed, 
revives  it,  if  of  corresponding  tenor.^ 

§  447.  Implied  Republication  by  Codicil  or  Writing. 

An  implied  or  constructive  republication  takes  place,  by  a  codicil 
suitably  expressed;  and  so  far  as  unattested  writings  served  for- 
merly as  wills  on  the  strength  of  one's  testamentary  intent,  unat- 
tested codicils  or  mere  writings  might  revive  as  well  as  alter  a  will. 
'Nov  by  the  old  law  was  it  necessary  to  annex  the  codicil  to  the 

8.  Carey  Re,  49  Vt.  226;  supra,  §  subsequent  marriage  made  a  codicil, 
424.  on  the  day  of  his  marriage  and  after 

9.  Carey  v.  Baughn.  36  Iowa,  540,  the  ceremony,  which  revived  and  con- 
14  Am.  Rep.  534;  53  S.  E.  850;  Fran-  firmed  the  will,  and  the  codicil  could 
sen's  Will,  26  Penn.  St.  202.  Semble  not  be  found  after  his  death,  probate 
if  publication  may  be  proved  by  parol,  was  granted  of  the  will  and  codicil 
so  may  republication;  and  vice  versa.  on  oral  proof  repelling  the  idea  that 
lb.;  56  How.  N.  Y.  Pr.  125.  the  testator  had  ever  changed  his  in- 

1.   Brown  v.   Clark,   77  N.  Y.   369;       tention.     James    v.    Shrimpton.    1    P. 
2  Notes   Cas.   406.   Where   a  testator      D.  431. 
whose    will    became    revoked    by     his  2.  Brady  v.  Cubitt,  1  Doug.  31. 

559 


448 


LAW    OF    WILLS. 


[part  IV. 


former  will  which  it  republished,^  nor  to  expressly  republish  the 
former  will,  provided  the  codicil  appeared  to  intend  republication, 
in  effect.  A  codicil  which  referred  vaguely  or  even  inaccurately 
to  the  prior  will  might  yet  operate  to  republish  it;  ^  for  it  wa.s  held 
that  every  codicil  is  constructively  a  part  of  a  testator's  will,  and 
as  such  proves  that  the  testator,  when  he  made  it,  considered  his 
will  as  then  in  existence.^ 

This  somewhat  strained  rule  of  constructive  intent,  though 
liable  to  extend  the  inference  of  republishing  beyond  one's  par- 
ticular intent,  yet  kept  that  intent  in  view  for  ultimate  guidance. 
For  while  the  rule  appeared  to  justify  the  conclusion  that  the 
codicil  was,  by  its  own  force  and  independently  of  any  expressed 
or  implied  intention  to  that  effect,  a  republication  of  the  will, 
unless  a  contrary  intent  was  indicated  by  the  instrument  with 
reasonable  certainty,®  yet  the  question  was,  whether  the  particular 
case  fell  within  the  general  rule.  And  where  it  appeared  by  the 
termB  of  the  codicil  that  it  was  not  intended  to  operate  so  as  to 
republish,  the  usual  presumption  failed,  and  no  republication  took 
place.^ 


3.  1  Wms.  Exrs.  211,  212,  and 
cases  cited;  Acherly  v.  Vernon,  3 
Bro.  P.  C.  107.  But  attaching  the 
codicil  to  one  of  two  or  more  wills 
■was  regarded  as  effectively  indicating 
that  the  codicil  was  intended  to  re- 
publish that  particular  will.     lb. 

4.  Rogers  v.  Pittis,  1  Add.  38,  cit- 
ing Jansen  v.  Jansen,  1  Ves.  Jr.  490. 

5.  Acherly  v.  Vernon,  3  Bro.  P.  C. 
107;  Barnes  v.  Crowe,  1  Ves.  Jr.  488; 
4  Bro.  C.  C.  2;  Duffield  v.  Elwes,  3  B. 
&  C.  705;  Dickinson  v.  Stldolph,  11 
C.  B.  N.  S.  341;  Burton  v.  Newbery, 
L.  R.  1  Ch.  D.  234;  Brown  v.  Clark, 
77  N.  Y.  369;  Haven  v.  Foster,  14 
Pick.  543;  Corr  v.  Porter,  33  Gratt. 
278;   Stover  v.  Kendall,  1  Cold.  557; 

•  NcfT's  Appeal,  48  Penn.  St.  501.    See 
Walton's  Estate,  45  A.  426,  194  Penn. 


528    (reviving    a    codicil    imperfectly 
executed ) . 

6.  See  Neff's  Appeal,  48  Penn.  St. 
501. 

7.  Bowes  V.  Bowes,  2  B.  &  P.  500; 
Haven  v.  Foster,  14  Pick.  541;  1 
Wms.  Exrs.  213. 

Where  a  codicil  is  made  as  part  of 
one's  last  will,  it  will  be  presumed  to 
refer  to  tlie  will  in  existence  and  in 
force,  and  not  to  one  already  can- 
celled and  revoked,  though  both  exist 
undestroyed.  Crosbie  v.  Macdoual,  4 
Ves.  615;  Hale  v.  Tokelove,  2  Rob. 
326.  And  a  codicil  which  refers  to  a 
will  of  a  particular  date,  and  not  to 
a  subsequent  codicil,  does  not  operate 
to  republish  that  subsequent  codicil. 
Burton  v  Newbery,  L.  R.  1  Ch.  D. 
234.    Nor  does  a  codicil  republish  any 


560 


CHAP.    Ill,]  EEPUBLICATION    OF    WILLS.  §    448a 

English  cases  have  gone  so  far  as  to  defeat,  by  a  probate,  the 
real  intention  of  a  testator,  where  reference  is  made  by  a  codicil  to 
the  wrong  \\dll  of  two  former  ones,  not  by  a  mere  mistake  of  date, 
but  through  misapprehension  by  the  professional  draftsman  of  the 
codicil.* 

§  448.  General  Effect  of  Codicil  in  reviving  what  was  imper- 
fectly executed. 
A  new  will  duly  executed  may  stand  as  a  final  disposition, 
whether  or  not  the  same  idea  was  initiated  in  former  papers  no 
longer  preserved.  But  according  to  various  decisions,  a  codicil, 
as  such,  may  refer  and  attach  to  some  former  invalid  testament 
still  extant  by  suitable  and  clear  expressions  so  as  to  confirm  and 
republish,  and  give  valid  operation  to  the  whole  as  one's  will.^  As 
where  the  former  instrument  was  imperfectly  executed.^  Or  where 
it  was  made  while  the  testator  was  coerced  and  the  coercion  is  after- 
wards removed.^  Or  in  the  case  of  a  married  woman,  disabled 
through  coverture  from  disposing  by  her  will  at  the  time  she  made 
it.^  That  the  most  sensible  course  usually,  for  these  days,  is  to 
destroy  the  inoperative  instrument,  and  make  a  will  de  novo  em- 
bodying whatever  is  desirable  in  the  former  invalid  instrument,  we 
need  hardly  argue. 

§  448a.  Proof  of  Codicil,  as  Establishing  Proof  of  Will. 

When  a  codicil  is  written  on  the  same  paper  as  the  will,  or  as  a 
separate  writing  clearly  and  unmistakably  refers  to  the  will  so  as 

part  of  the  will  inconsistent  with  its  teau,   14  Mo.   587,   55   Am.   Dec.   120; 

own    terms.     26    Barb.    68.     A    mere  McCurdy  v.  Neall,  42  N.  J.  Eq.   333, 

casual  reference  in  a  codicil  to  a  for-  7   A.    566;    Murfield's   Will,   74   Iowa, 

mer   revoked   will   does   not  revive  it.  479,    38    N.    W.    170;    15    P.    D.    216; 

Dennis's  Goods,    (1891)    P.  326.     And  Kelly's  Estate,  84  A.   593,  236  Penn. 

see  Smith  Re,  45  Ch.  D.  632.  54.     But  a  holographic  codicil  which 

8.  Chilcott's  Goods  (1897),  P.  223;  is  unattested  cannot  bring  into  opera- 
6  P.  D.   205.  tion   a   former   invalid   will.     83   Ky. 

9.  Cf.  supra,  §  281.  584.     See  §   255;    89   S.  W.   687,   121 
1.  Beall  V.  Cunningham,  3  B.  Mon.      Ky.   588. 

390,  29  Am.  Dec.  469 ;  Harvy  v.  Ghou-  2.  O'Neill  v.  Farr,  1  Rich.  80. 

36  561 


§    449  LAW    OF    WILLS.  [PART    IV. 

to  preclude  all  doubt  of  its  identity,  proof  of  the  codicil  establishes 
the  will  without  further  proof,  except  such  portions  thereof  as  are 
revoked  or  altered  by  the  codicil.  In  such  case,  the  codicil,  when 
duly  executed,  operates  as  a  republication  of  the  original  will,  and 
gives  to  it  the  same  force  as  if  it  had  been  executed  at  the  date  of 
the  codicil,  the  two  instruments  being  thus  regarded  as  one,  and  as 
speaking  from  the  date  of  the  codicil.*  Flirthermore,  it  should  be 
presumed  that  the  testator  knew  the  contents  of  such  original  will 
when  he  executed  the  codicil.^ 

§  449.  The  Same  Subject:  Former  Efficacy  of  Republishing  so 
as  to  dispose  of  After-Acquired  Property. 
Formerly  the  efficacy  of  a  codicil  in  republishing  a  prior  will 
was  especially  valued,  inasmuch  as  it  might  enlarge  the  operation 
of  the  original  testament  by  disposing  of  more  property.  As 
already  observed,  a  devise,  by  the  technical  theory  of  our  earlier 
law,  carried  no  lands  acquired  after  its  date ;  ®  while  republication 
or  a  new  devise  alike  required  a  testamentary  writing  duly  attested,^ 
in  order  to  affect  one's  real  estate.^  By  virtue  of  a  codicil  properly 
subscribed  and  witnessed,  lands  acquired  after  the  date  of  the  will 
and  before  the  execution  of  the  codicil  would  pass  under  the  will.* 
This  furnished  a  strong  motive  for  giving  to  codicils  the  repub- 
lishing effect ;  and  such  a  turn  of  construction  was  constantly  urged 

3.  Braham  v.  Burchell,  3  Add.  243.      344;    Pope  v.  Pope,  95  Ga.  87,  22  S. 
So,  too,  under    the    former  English      E.   245. 

Statute,   it   was   held   that   where   an  5.  Pope  v.  Pope,  ib. ;   §  440a. 

infant  made  a  will  before  he  was  com-  6.  Supra,  §  29. 

petent  to  do   so,   he  might   expressly  7.  Supra,  §   442. 

approve  the   will    after    arriving    at  8.  2  Eq.  Cas.  Ab.  769,  pi.  1;  Potter 

competent  age.    Supra,  §§  39-44.    And  v.    Potter,    1    Ves.    437;    Piggott    v. 

fX'rsons   of   unsound    mind   might   re-  Waller,  7  Ves.  98;    Miles  v.   Boyden, 

publish,   when   fully   restored   to    rea-  3  Pick.  213;   Browntl  v.  De  Wolf,    3 

son,  by  an  express  act.    Swinb.  pt.  2,  Mason,    486;    Dunlap    v.    Dunlap,     4 

§  3,  pi.  2;   1  Wms.  Exrs.  225.  Desaus.     305;      Jones    v.    Hartley,    2 

4.  Hobart  v.  Hobart,  154  ill.  610,  Whart.  103;  Cogdell  v.  Cogdell,  3 
613,  64  N.  E.  1038;  Kelly's  Estate,  Desaus.  346;  Langdon  v.  Astor,  16 
ft4  A.  593,  236  Penn.  54;  Blackett  v.  N.  Y.  9;  Corr  v.  Porter,  33  Gratt. 
Zicglcr,   133   N.   W.   901,     153     Iowa.  278. 

562 


CHAP.    III.]  REPUBLICATIO?^    OF    WILLS.  §    449 

by  counsel,  so  as  to  give  consistency  to  the  maker's  disposition  as 
a  whole,  if  the  language  used  could  possibly  bear  it.  Courts  yielded 
to  the  pressure ;  and  even  codicils  which  expressed  no  intention  to 
republish,  which  did  not  refer  to  the  former  will  nor  in  terms  con- 
firm it,  which  were  occupied,  in  fact,  with  property  of  a  different 
character,  might,  by  the  simple  force  of  reviving  the  residuary 
clause  of  the  former  will,  pass  lands  acquired  since  the  will  was 
executed.^  But  a  testator's  intent  was  not  to  be  tortured  to  pro- 
duce this  result;  and  republication  might  be  negatived  by  the  con- 
tents of  the  will  itself,^  or  where  the  words  of  the  will  were  not 
general  enough,  when  brought  down  to  date,  to  supply  the  disposi- 
tion which  the  codicil  itself  omitted.^ 

Since  the  passage  of  statutes,  English  and  American,  which  dis- 
pense with  continuous  seisin  and  permit  an  original  will  to  operate 
upon  after-acquired  lands  wherever  the  testator  so  intended,  this 
doctrine  of  revival  by  codicil  has  lost  its  prestige.^  As  for  wills  of 
personal  property,  they  rarely  needed  this  borrowed  virtue  to  en- 
large their  operation,  since  a  residuary  bequest  carried  by  its  own 
terms  whatever  chattels  the  testator  might  own  at  his  death.*  Codi- 
cils in  modern  times  may  well  be  remitted,  therefore,  to  their  more 
obvious  and  natural  purpose.  And  courts  are  confirmed  in  the 
position  long  ago  taken  that  if  the  codicil  shows  on  its  face  that 
the  testator  did  not  intend  to  republish,  it  cannot  republish.^ 

9.  lb.;   1  Jarm.  Wills,  193.  tliat   he  may  become  entitled   to   the 

1.  Strathmore  v.  Bowes,  7  T.  R.  same  subsequently  to  the  execution 
482;  York  v.  Waller,  12  M.  &  W.  591.      of  his  will.    And  by  §  24  a  will  shall 

2.  Parker  v.  Briscoe,  8  Taunt.  699;  bo  construed  to  speak  with  reference 
Monypenny  v.  Bristow,  2  Russ.  &  My.  to  the  real  and  personal  estate  com- 
117;  Haven  v.  Foster,  14  Pick.  541.  prised  in  it,  from  the  deatli  of  the 
This  general  doctrine  of  constructive  testator,  unless  a  contrary  intent 
republication   under  the    old     law    is  shall  appear  by  the  will. 

traced  out  in  1  Jarm.  Wills.  193-204.  4.    1    Jarm.   Wills,    193;     Miller    v. 

3.  ^upra,  §  29.  By  Stat.  1  Vict.  c.  Brown,  2  Hagg.  209;  1  Wms.  Exrs. 
26.    §    3,   the   power   of   disposing   by      220;    supra,    §   29. 

will   as   required   by   that   act   is    ex-  5.  See  §  447;  Strathmore  v.  Bowes, 

tended  to  all  such  real  estate   as    the  7  T.  R.  482;  Neff's  Appeal,  48  Penn. 

testator    may    be    entitled    to    at    the  St.    501;    Hughes  v.   Turner,   3   M.   & 

time    of    his   death,   notwithstanding  K.   666. 

563 


§  450 


LAW    OF    "WILLS. 


[part   IV. 


§  450.  Republication  brings  down  Will  to  Date. 

The  general  effect  of  republication  is  to  make  a  new  will  at  the 
date  of  republication;  to  bring  the  old  will  down  to  the  new  date 
and  make  it  speak  from  that  sub.^quent  time.^  Hence  to  re- 
execute,  or  else  to  execute  a  new  will,  de-troying  the  former  one, 
best  avoids  difficulties  of  interpretation  to  which  papers  of  different 
date  may  unexpectedly  give  rise. 

Inasmuch  as  the  laist  will  among  various  ones  is  the  testator's 
true  testament,  republicaition  revokes  as  of  its  date  every  former 
will  inconsistent  with  that  which  is  republished.'^  But  if  the  will 
which  is  republished  had  codicils  added  to  it,  the  presumption 
arises  that  the  testator  means  to  ratify  and  confirm  the  will  as 
amended  by  its  codicils,  and  not  otherwise ;  though  the  true  intent 
of  the  transaction  should  control,  if  discoverable.^  A  codicil  which 
republishes  as  of  its  own  date  may  ratify  and  confirm  a  will  in 
whole  or  in  part ;  ^  and  a  will  speaks  from  the  date  of  its  republica- 
tion in  a  codicil.^ 


6.  1  Wms.  Exrs.  216;  Whiting's 
Appeal,  67  Conn.  379,  35  A.  238.  A 
will  which  is  revoked  by  a  second 
will,  and  then  revived  by  a  subse- 
quent codicil,  is  to  be  treated  as  of 
the  same  date  as  the  codicil,  and 
therefore  subsequent  to  the  second 
will.    Jenkins  Re,  W.  N.   (1886)    177. 

7.  Rogers  v.  Pittis,  1  Add.  38;  Wal- 
pole  v.  Cholmondeley,  7  T.  R.  138. 

8.  Crosbie  v.  Macdoual,  4  Ves.  610; 
1  Wms.  Exrs.  217;  Upfill  v.  Marshall, 
3  Curt.  636;  Wikoff's  Appeal,  15 
Penn.  St.  281,  53  Am.  Dec.  59.  See 
1  Vict.  c.  26,  §  22,  Appendix,  upon 
a  point  of  construction  in  this  con- 
nection. And  see  Hay  Re  (1904),  1 
Ch.  317.  Republication  docs  not  have 
the  elTect  of  reviving  legacies  wliich 
have  been  adeemed  or  satisfied.  Lang- 
don  V.  Astor,  16  N.  Y.  9;  Paine  v. 
Pai-.sons,  14  Pick.  318;  Tanton  v.  Kel- 


ler, 167  111.  129,  47  N.  E.  376.  Nor 
in  general  to  effect,  by  technical  con- 
struction, a  disposition  different  from 
what  the  testator  meant.  See  Lin- 
nard's  Appeal,  93  Penn.  St.  313,  39 
Am.  Rep.  753.  A  will  altered  after 
execution  may  be  republished,  to- 
gether with  those  alterations,  by  a 
codicil  annexed  and  clearly  referring 
to    it.      72    Ga.    568;    15     P.    D.    216. 

The  republishing  codicil  affirms 
mental  capacity  and  freedom  from  co- 
ercion when  the  will  itself  was  exe- 
cuted. Journeay's  Will,  57  N.  E. 
1113,  162  N.  Y.  611.  See  also  Stev- 
ens v.  Myers,  121  P.  434,  126  P.  29. 

9.  Hawke  v.  Euyart,  30  Neb.  149, 
27  Am.  St.  Rep.  321,  46  N.  W.  422. 

1.  Cilmor's  Estate,  154  Penn.  St. 
523;  Hayne's  Estate,  133  P.  277,  165 
Cal.  568. 


5G4 


PART  V. 

WILLS    UPON    VALUABLE    CONSIDERATION. 


CHAPTER  I. 

JOINT  AND  MUTUAL  WILLS. 

§  451.  Wills  are  Revocable,  because  of  the  Nature  of  a  Gift. 

We  have,  consistently  with  judicial  precedent,  pointed  out  the 
revocable  or  ambulatory  quality  of  a  will  during  the  testator's  life- 
time as  its  cardinal  feature/  One  may  make,  alter  or  revoke  his 
own  testament  at  pleasure,  generally  speaking,  so  long  as  he  is  an 
existing,  capable  person  acting  with  freedom ;  and  courts  have  for 
centuries  asserted  this  as  an  axiom,  without  occasion  to  note 
whether  the  rule  had  not  after  all  some  qualifications. 

But  there  are  qualifications  of  this  rule  notwithstanding;  and 
we  apprehend  that  this  revocable  quality  of  a  will  springy  from  the 
deeper  postulate  that  a  disposition  of  property  by  testament  is  of 
the  nature  of  a  gift.  In  the  vast  majority  of  cases,  indeed  almost 
invariably,  the  disposition,  whether  viewed  as  a  whole  or  with 
reference  to  separate  objects  of  the  testator's  bounty,  is  in  a  genuine 
sense  gratuitous ;  the  owner  regulates  the  succession  to  the  bulk  of 
his  fortune  as  it  may  exist  at  his  death,  after  discharging  his  debts 
and  obligations;  he  considers  it  lawful  for  him  to  do  what  he 
will  with  his  own.  It  may  fairly  be  presumed  that  any  devise  or 
legacy  under  a  will  is  given  as  a  mere  bounty,  in  the  legal  sense, 
and  gratuitonsly.  But  one's  testament  operates  subject  to  what 
his  estate  may  owe,  and  should  his  estate  prove  embarrassed  or  in- 
solvent the  will,  though  good  as  an  instrument,  fails  to  dispose  by 
its  strict  tenor.  In  short,  the  transfer  of  an  estate  by  gift  is  ob- 
structed by  claims  for  legal  consideration  against  that  estate. 

When  we  say  that  a  testamentary  disposition,  under  this  primary 

1.  Supra,  §  274. 

565 


§  452  i.AW  OF  WILLS.  [part  v. 

qualification,  is  gratuitous,  we  mean  that  there  is  no  binding,  no 
valuable  consideration,  so  far  as  devise,  legacy  or  bequest  may 
operate.  One  may  give  by  his  will  out  of  affection,  friendship,  a 
sense  of  duty,  even  gratitude;  but  so  far  the  motive  has  nothing 
stronger  than  a  moral  consideration,  and  the  transfer  by  succes- 
sion is  in  the  nature  of  a  gift.  For  this  reason  it  ought  to  be  re- 
vocable ;  for  such  a  testament  is  in  its  essence  a  gift  upon  condition 
that  the  testator  shall  die  without  meanwhile  altering  or  revoking 
the  disposition.  And  such  is  the  condition  implied  not  only  in  a 
strict  testament,  but  in  a  gift  causa  mortis:  the  oral  will  and  the 
oral  death-bed  gift  being  doubtless  the  primitive  method  of  indi- 
vidual transfer  for  posthumous  effect.^  This  implied  condition  in 
the  gratuitous  transfer  leaves  it  revocable,  wholly  or  pro  tanto,  at 
the  giver's  or  disposer's  discretion. 

§  452.  But  a  Will  may  be  upon  Valuable  Consideration  and 
Imperative. 
But  a  will  may  be  made  upon  valuable  consideration  in  special 
instances;  and  if  so,  the  disposition  is  not  longer  in  the  nature  of 
a  gift  and  gratuitous.  Is  it  then  irrevocable?  Here  is  a  difficult 
question  with  which  many  of  the  later  cases  confront  us.  Waiving, 
however,  for  a  moment,  the  practical  solution  of  a  remedy,  we  an- 
swer that  such  a  will  loses  in  effect  its  revocable  character  and  ac- 
quires the  binding  force  of  a  contract  transaction  ;  that  the  testator 
is  no  more  capable  of  varying  and  regulating  that  disposition  of 
property  at  his  sole  discretion  than  he  was  of  disposing  of  his  estate 
so  as  to  give  it  away  over  his  creditors'  heads  and  regardless  of  legal 
demands  which  might  be  presented  at  the  settlement  of  his 
estate.  As  a  matter  of  legal  principle,  then,  we  must  admit  that 
there  may  be  in  effect  wills  revocable  and  wills  irrevocable ;  that 
all  testamentary  divspositions  are  not  absolutely  and  completely  in 
the  nature  of  a  gift  by  the  disposer;  that  a  testator's  intention  must 

2.  See  supra,  §  .359;  and  as  to  gift.s 
causa,  mortis,  2  Sclioul.  Pers.  Prop. 
3d  f.d.   §§   135,   136,   188. 

566 


CHAP.  I.]  WILLS    UPON    VALUABLE    CONSIDERATTOISr.  §    453 

bend  to  imperious  circumstances  which  interfere  with  his  free,  am- 
bulatory disposition,  and  mould,  partially  or  it  may  be  wholly, 
the  settlement  of  the  estate  which  he  leaves  at  his  death. 

We  may  perhaps  fairly  assume  as  a  general  principle  recognized 
in  equity,  that  full  specific  enforcement  will  not  be  applied  in  cases 
of  this  sort,  where  the  contract  made  is  vague  and  uncertain  for 
proof,  or  the  remedy  sought  is  harsh  or  oppressive,  or  unjust  to  in- 
nocent third  parties ;  nor  so  as  to  extend  a  specifi.c  ©nforcemeoit 
beyond  the  scope  of  the  actual  obligation. 

§  452a.  Will  admissible  to  Probate,  notwithstanding  Breach  of 
Contract. 

A  will  is  admissible  to  probate  notwithstanding  it  indicates  some 
contract  obligation  of  binding  force  on  the  testator's  part.  For,  at 
all  events,  one  may  by  his  will  appoint  the  executor  to  administer 
the  estate ;  and,  more  than  this,  the  probate  of  a  will  as  to  one's 
property  merely  concludes  that  the  will  is  valid  to  pass  any  estate 
which  the  testator  had  power  to  devise  or  bequeath,  and  not  that 
there  was  power  to  devise  or  bequeath  as  the  will  seeks  to  direct. 
Controversies  of  the  latter  sort  are  on  the  other  hand  to  be  settled 
by  proper  and  separate  proceedings  in  law  or  equity.^ 

§  453.  The  Rule  of  Valuable  Consideration  practically  applied; 
Legacies  as  Payment  for  Service,  etc. 

This  rule  of  valuable  consideration  we  find  practically  applied 
where  one  renders  valuable  services  on  the  promise  of  a  legacy. 
One  who  boards,  nurses  or  cares  for,  some  aged  or  feeble  person, 
does  so,  in  many  instances,  on  the  promise  or  expectation  of  a 
legacy,  or  it  may  be,  the  whole  surplus  of  the  estate.  Mere  ex- 
pectation cannot  in  general  create  an  enforceable  contract;  but  a 
mutual  understanding  may,  if  shown,  afford  the  basis  of  a  valid 

3.  Sumner  v.  Crane,  155  Mass.  483;  not    enforce).      See     Burke's    Estate, 

4   Met.   492;    Craine   v.   Edwards,   92  134  P.  11,  66  Ore.  252;    Davidson  v. 

Ky.   109,   15   L.   R.  A.   447.   29  N.   E.  Davidson,  79  S.  E.  998    (W.  Va.)  ;  § 

1151;    17   S.   W.   211;    150   Midi.    630,  249. 
114  N.   W.  408    (probate  courts  can- 

567 


§  453  LAW  OF  WILLS.  [part  v.. 

claim  against  the  indebted  person's  estate.  If  the  person  render- 
ing such  a  service  was  promised  the  legacy  by  the  person  he  served, 
and  the  claim  has  legal  merits  and  was  more  than  the  mere  per- 
formance of  some  natural  duty  to  another,  the  courts  afford  a  prac- 
tical means  of  its  enforcemeait.  For  if  the  aged  or  feeble  decedent 
makes  no  will,  or  makes  a  different  will  from  what  was  agreed 
upon,  or  revokes  a  bequest  which  was  founded  upon  his  own  prom- 
ise, the  claim  may  be  presented  for  settlement,  to  the  whole  or 
partial  absorption  of  the  estate,  as  the  case  may  be.  Probate  or 
common  law  tribunals  cannot  set  aside  or  ignore  the  will  as  an  in- 
strument, nor  make  a  will  where  one  has  died  intestate,  nor  remodel 
or  construct  a  will  to  meet  the  special  compact  of  the  parties ;  but 
treating  the  person  disappointed  of  his  legacy  as  a  creditor  of  the 
estate,  they  apply  a  simple  and  available  remedy.^  And,  upon  the 
same  principle  of  a  contract  obligation  on  the  decedent's  part  to 
leave  his  whole  fortune  to  one  who  came  and  took  care  of  him  in 
his  declining  years,  and  perhaps  on  the  suggestion  of  a  part  per- 
formance, besides,  a  collateral  relative  has  sometimes  been  per- 
mitted to  enforce  specific  performance  in  equity,  so  ais  to  s-weep 
in  the  entire  estate  over  and  above  the  debts,  regardless  of  the  dis- 
positions which  may  happen  to  be  made  by  the  will  in  favor  of 
others.^  But  where  the  amount  and  mode  of  oompemsation  had 
been  left  to  the  decedent,  and  some  provision  was  made  accordingly 
by  his  will  or  otherwise,  for  the  person  rendering  the  service,  the 
latter  must  remain  bound  by  it.®     And  by  electing  to  receive   the 

4.  See  Shakespeare  v.  Markham,  17  Howard,   43    S.   E.   438,   117   Ga.   94; 

N.    Y.    Supr.    311,    and     cases    cited;  Day  v.  Washburn,   81  A.  474,   76  N. 

Schoul.    Dora.   Rel.    §    274;    11   Phila.  H.   303. 

93;   Townsend  v.  Vanderwcrker,     160  5.  Schntt  v.  Missionary  Society,  41 

U.  S.  171,  40  L.  Ed.  383;  Wellington  N.    J.   Eq.    115.    Here  the   agreement 

V.  Apthorp,   145   Mass.   69;    13  N.   E.  wa.s    established     by     correspondence. 

10;    Whetstine  v.   Wilson,   104  N.   C.  See  ne.xt  section. 

385,  10  S.  E.  471;   Stone  v.  Todd.  49  6.  Lee's  Appeal,  53  Conn.  363,  3  A. 

N.  J.  L.  274,  8  A.   300;    Hudson    v.  758.     In  considering  what  is  due  the 

Hudson,  87  Ga.  678,  27  Am.  St.  Rep.  disappointed  promisee,  all  proper  ofiF- 

270,  13    S.  E.  583;  Laird  v.  Vila.  100  sets  must  be  made.    Hudson  v.  Hud- 

N.    W.    656,   93    Minn.    45;     Hanks    v.  son,  svpra. 

568 


CHAP.  I.]  WILLS    UPON   VALUABLE    CONSIDERATIOlSr. 


453 


bonefits  under  the  will,  such  claimant  waives  his  riglits  under  the' 
contract.^  Equity  under  circumstances  of  hardship  and  injustice 
to  innocent  third  parties  may  refuse  specific  performance  and 
remit  the  party  to  a  creditor's  action  at  law,  quantum  meruit} 


7.  Towle  V.  Towle,  79  Wis.  596,  48 
N.  W.  800.  Nor  to  such  contract, 
when  oral  does  the  objection  of  the 
Statute  of  Frauds  apply;  for  it  is 
not  for  the  sale  of  lands  or  goods, 
and  it  may  be  performed  within  a 
year.  Wellington  v.  Apthorp,  supra. 
But  any  oral  contract  to  devise  all 
one's  property,  real  and  personal,  to 
a  certain  person,  semble,  would  be  ob- 
noxious to  the  Statute  of  Frauds.  lb. ; 
Ellis  V.  Gary,  74  Wis.  176.  Cf.  Bur- 
gess V.  Burgess,  109  Penn.  St.  312, 
1  A.  167.  See  next  section.  And  any 
oral  agreement  of  this  kind  should 
at  all  events  be  clearly  proved.  Bur- 
gess V.  Burgess,  ib. ;  McKeegan  v. 
O'Neill,  22  S.  C.  454;  Madison  v.  Al- 
derson,  8  App.  Cas.  467;  Davis  v. 
Hendricks,  99  Mo.  478,  12  S.  W. 
887;  6  Dem.  473;  31  S.  C.  605,  9  S. 
E.  802 ;  Rice  v.  Hartman,  84  Va.  251, 
4  S.  E.  621;  74  Wis.  176,  17  Am.  St. 
Rep.  125,  4  L.  R.  A.  55,  42  N.  W. 
252;  109  N.  W^  983,  131  Wis.  216,  120 
Am.  St.  Rep.  1038;  Smith  v.  Hum- 
phreys, 65  A.  57,  104  Md.  285;  105 
N.  W.  499,  125  Iowa,  707;  Russell  v. 
Jones,  135  F.  929;  80  P.  774, 
38  Wash.  691;  93  N.  Y.  S.  864  (bur- 
den of  proof)  ;  16  HI.  App.  341;  Wal- 
lace V.  Wallace,  137  N.  Y.  S.  43 
(clear  written  or  oral  proof)  ;  Mur- 
tha  V.  Donohoo,  136  N.  W.  158,  149 
Wis.  481  (extension  of  time  for  pay- 
ment of  past  services:  rule  of  dam- 
ages); Taylor  v.  Higgs,  95  N.  E.  30, 
202  N.  Y.  65;  Finger  v.  Auken.  731 
N.  W.  657,  154  Iowa,  507   (expression 


of  intention  not  enough)  ;  130  N.  W. 
376,  151  Iowa,  86;  Van  Horn  v.  De- 
marest,  77  A.  354,  76  N.  J.  Eq.  386 
(failure  to  assert  in  lifetime  of  testa- 
tor when  ejected)  ;  Bless  v.  Bliz- 
zard, 120  P.   351,  86  Kan.   230. 

The  obligation  to  remunerate  for 
such  services,  as  promised,  is  not  im- 
paired, although  the  consideration  is 
to  be  wholly  or  in  part  in  the  future, 
and  though  the  person  to  whom  the 
promise  was  made  remains  under  no 
binding  mutual  obligation  on  his 
part.  C.  Allen,  J.,  in  145  Mass.  69, 
13  N.  E.  10. 

A  written  contract  to  bequeath 
one-half  of  one's  estate  to  A.  is  not 
void  for  uncertain  description.  Koebl 
V.  Haumesser,  114  Ind.  311,  15  N.  E. 
345. 

8.  Owens  v.  McNally,  113  Cal.  444, 
where  a  niece  claimed  a  promise  of 
the  whole  property,  and  the  testator 
had  in  fact  married  afterwards. 

Gifts  made  before  death  are.  in  such 
cases  presumed  payments  pro  tanto 
and  offsets  are  regarded  such  as  fair 
wages  for  personal  service  rendered 
the  decedent.  McNamara  v.  Michi- 
gan Trust  Co.,  148  Mich.  346,  111  N. 
W.  1066;  87  Ga.  678,  27  Am.  St.  Rep. 
270,  13  S.  E.  583;  Waters  v.  Cline, 
85  S.  W.  209,  27  Ky.  479,  586.  There 
is  no  breach  of  promise  or  limitation 
until  after  the  testator's  death.  Law- 
son  v.  Mullinix,  64  A.  938,  104  Md. 
156;  98  N.  Y.  S.  934;  116  Tenn.  252, 
6  L.  R.  A.  (N.  S.)  703,  92  S.  W. 
767;    117  Ga.   94,  43   S.   E.   438.     For 


5G9 


453a 


LAW  OF  WILLS. 


[PAET  V. 


§  453a.  Other  Instances  of  Valuable  Consideration. 

There  are  other  ways  in  which  a  will  may  be  disregarded  so  far 
as  it  is  inconsistent  with  a  previous  contract  or  covenant.  Thus,  in  a 
Pennsylvania  case,  C.,  after  covenanting  in  a  sealed  instrument, 
and  for  a  valuable  consideration,  that  he  would  not  by  deed,  devise 
or  otherwise,  interfere  with  the  rights  of  his  heirs-at-law  as  to  their 
free  and  equal  share  in  all  his  real  estate,  made  a  will,  wherein  he 
devised  his  real  estate  to  certain  heirs,  without  including  his  grand- 
son T.  therein.  It  was  held  that  T.  was  entitled  to  recover  in  eject- 
ment his  interest  as  an  heir  of  C.^  On  the  same  general  principle 
an  ante-nuptial  contract  may  hinder  the  free  testamentary  disposi- 
tion of  a  contracting  spouse.^  Ot  a  business  contract  involving  a 
specific  bequest  may  find  enforcement.^ 


unjustifiable  discharge  during  the 
testator's  life,  the  person  employed 
may  sue  at  once  to  recover  damages, 
including  the  prospective  right  to 
earn  the  legacy.  Edwards  v.  Slate, 
68  N.  E.  342,  184  Mass.  317;  Hursey 
v.  Surles,  74  S.  E.  618,  91  S.  C.  284; 
47  A.  626,  65  N.  J.  L.  279.  And  see 
Burdine  v.  Burdine,  36  S.  E.  992,  98 
Va.  515,  81  Am.  St.  Rep.  741  (eman- 
cipated slave)  ;  Koebl  v.  Haumesser, 
114  Ind.   311,   15   N.  E.   345. 

9.  Taylor  v.  Mitchell,  87  Penn.  St. 
518,  39  Am.  Rep.  383.  See  also,  as 
to  a  bond  conditioned  to  leave  a  cer- 
tain farm  by  will,  Major's  Appeal, 
126  Penn.  St.  109,  17  A.  535.  And 
see  124  N.  Y.  433,  26  N.  E.  1024;  46 
Minn.  33,  48  N.  W.  450;  111  Mich. 
140,  69  N.  W.  239.  And  see  Lipe  v. 
Ilouck,  38  S.  E.  297,  128  N.  C.  115 
(abandonment  of  lawsuit)  ;  Keagle  v. 
Eessell,  91  Mich.  618,  52  N.  W.  58 
(will  anxl  contemporaneous  mort- 
gage) ;  Clawson  v.  Brewer,  58  A.  598, 
70  N.  J.  Eq.  803;  78  S.  W.  486,  97 
Te.x.  296;   98  N.  W.  57,  70  Neb.  544, 


113  Am.  St.  Rep.  802;  Spencer  v. 
Spencer,  55  A.  637,  25  R.  I.  239  (a 
business  service)  ;  56  N.  E.  237,  154 
Ind.  253;  Dillon  v.  Gray,  123  P. 
878,  87  Kan.  139  (as  to  remarriage 
of  testator,  etc. ) . 

1.  Cole  V.  Society,  64  N.  H.  445,  14 
A.  73. 

2.  Crofut  V.  Layton.  68  Conn.  91, 
35  A.  783. 

Such  a  contract  is  not  revocable 
after  the  other  party  has  performed 
his  part.  Teske  v.  Dittberner,  98  N. 
W.  57,  70  Neb.  544.  The  rule  has  no 
application  to  property  where  the 
testator  had  only  a  life  estate.  Hill 
V.  Gianelli,  77  N.  E.  458,  221  111.  286, 
112  Am.  St.  Rep.  182.  A  bequest  in 
trust  does  not  comply  with  a  con- 
tract to  bequeath  absolutely.  49  S. 
E  49,  137  N.  C.  91.  See  42  S.  E. 
336.  131  N.  C.  8.  The  local  statute 
of  wills  does  not  apply  to  such  con- 
tracts. Winne  v.  Winne,  59  N.  E. 
832,  116  N.  Y.  263,  5  L.  R.  A.  617. 
See  Hammond  v.  Hammond,  70  S.  E. 
588,    135   Ga.   768    (will    giving    half 


170 


CHAP.  I.]  WILLS    UPON   VALUABLE    CONSIDERATION. 


454 


§  454.  Contract    for    a    Certain    Will    specifically    enforced    in 
Equity. 

Courte  of  equity  have  gone  farther  than  this ;  and  the  principle, 
which  in  the  present  day  appears  to  be  asserted,  is,  that  where  one 
contracts  upon  valuable  consideration  to  execute  a  will  after  a  cer- 
tain tenor,  the  agreement  is  binding  upon  his  death,  and  may  be 
epecifically  enforced  against  his  rep'resentatives  and  his  estate.^ 
For  a  trust  is  thus  fastened  upon  the  property  of  the  promisor 
which  binds  the  estate  at  his  death,  ISTevertheless  a  devisee  comes 
within  the  legal  definition  of  one  who  takes  by  purchase;  and  hence 
to  an  oral  contract  of  this  character,  the  Statute  of  Frauds  may  be 
pleaded;  *  and  it  is  possible  that  other  technical  objections  may  be 


does  not  fulfil  contract  to  give  tlie 
whole)  ;  Belknap  v.  Tillotson,  88  A. 
841,  82  N.  J.  Eq.  271. 

3.  Walpole  v.  Orford,  3  Ves.  402; 
Caton  V.  Caton,  L.  R.  1  Ch.  137; 
s.  c.  L.  R.  2  H.  L.  127;  Gould  v. 
Mansfield,  103  Mass.  408;  Anding  v. 
Davis,  38  Miss.  574,  77  Am.  Dec.  658; 
11  Ired.  632;  Izard  v.  Middleton,  1 
Desaus.  116;    Day,  Ex   parte,  1   Bradf. 

(N.  Y.)  476,  and  cases  cited;  Bol- 
man  v.  Overall,  80  Ala.  451,  60  Am. 
Rep.  107;  Carraichael  v.  Carmichael, 
72  Mich.  76,  16  Am.  St.  Rep.  528,  1 
L.  R.  A.  596,  40  N.  W.  173;  73  Mich. 
483,  41  N.  W.  514;  Schutt  v.  Mis- 
sionary   Society,    41    N.    J.    Eq.    115 

(entire  estate  carried  over)  ;  Allen 
V.  Bromberg,  41  So.  771.  147  Ala. 
317;  Austen  v.  Kuehn,  71  N.  E.  841, 
211   111.    13. 

4.  Walpole  v.  Orford,  3  Ves.  402; 
Harder  v.  Harder,  2  Sandf.  Ch.  17. 
A  verbal  agreement  not  to  make  a 
will  so  as  to  deprive  one  of  land 
which  he  would  inherit  by  the  statute 
of  descents  is  also  invalid  under  the 
Statute  of  Frauds.  Dicken  v.  McKin- 
ley,  163  111.  318,  54  Am.  St.  Rep.  471. 


45  N.  E.  134;  132  111.  312,  23  N.  E. 
1018.  8  L.  R.  A.  414.  The  want  of 
part  performance  in  a  contract  to  sell 
land  may  thus  be  set  up.  Gould  v. 
Mansfield,  103  Mass.  408,  4  Am.  Rep. 
573;  Ellis  v.  Gary,  74  Wis.  176,  17 
Am.  St.  Rep.  125.  But  part  per- 
formance by  the  testator  may  some- 
times appear.  Sharkey  v.  McDermott, 
91  Mo.  647,  60  Am.  Rep.  270.  Part 
performance  by  the  promisee  alone  is 
insufficient.  Ellis  v.  Gary,  supra;  es- 
pecially where  the  promisee  did  not 
then  possess  the  land.  163  111.  318. 
Where  the  promise  is  to  devise  and 
bequeath  all  of  one's  real  and  per- 
sonal property,  it  is  indivisible;  and 
failing  as  to  the  real  property,  it 
fails  also  as  to  the  personal.  lb.  See 
Bird  V.  Pope,  73  Mich.  483,  41  N".  W. 
514.  But  though  the  oral  agreement 
may  not  be  enforceable,  the  value  of 
one's  services  rendered  in  considera- 
tion may  be  recovered.  See  §  453 ; 
Stevens  v.  Lee,  70  Tex.  279,  85  W.  40. 
An  agreement  to  leave  property  to 
several  persons  by  will,  share  and 
share  alike,  is  several  as  to  each  of 
the   promisees,   and   they   cannot   join 


571 


§  454 


LAW    OF    WILLS. 


[PAET  V. 


raised  under  the  Statutes  of  Wills,  not  to  add  the  general  considera- 
tions of  uncertainty  or  injustice  already  suggested.  An  adopted 
child,  who,  in  consideration  of  adoption,  was  promised  all  the  tes- 
tator's property  at  his  death,  has  been  permitted  to  enforce  specific 
performance  out  of  the  estate,  to  the  subversion  of  a  will ;  ^  but  not 
where  the  decedent's  promise  extended  only  to  treating  the  adopted 
child  like  a  natural  one.^ 

Positive  decisions  enforcing  the  specific  performance  of  an  un- 
executed will  are  scarcely  to  be  found.  But  in  equity  a  will  which 
is  once  fonually  made  in  conformity  to  some  agreement  may  be 
upheld  as  originally  executed  on  the  strength  of  some  valuable 
consideration  therein  interposed;  the  effect  of  which  might  possi- 
bly be  to  make  the  will  practically  irrevocable,  unless  some  matter 
of  form,  some  technical  arbitrary  rule  springing  out  of  the  statute, 
or  the  necessary  form  or  construction  of  the  will  should  defeat  what 
the  parties  had  mutually  intended.^  There  is  nothing  unlawful 
in  such  a  compact,  nothing  contrary  to  good  morals.^ 


in  enforcing  it.  Myers  v.  Cronk,  45 
Hun  (N.  Y.),  401.  Probate  proceed- 
ings, in  the  allowance  of  claims 
against  an  estate,  must  be  distin- 
guished from  specific  performance  in 
equity.  lb.  And  the  executor  should 
be  made  a  party  to  any  such  proceed- 
ings for  subverting  the  provisions  of 
a  will.  Cole  v.  Society,  64  N.  H.  445, 
14  A.  73;  58  Hun  610. 

"  If,  then,  the  agreement  be  speci- 
fically enforceable  against  the  de- 
faulting party's  representatives,  it 
would  seem  that  it  might  have  been 
enforceable  against  the  party  himself 
during  his  lifetime;  refusal  or  at- 
attempted  revocation  as  to  that  party 
not  being  ground  merely  for  an 
action  for  breach  of  contract.  Hence 
there  is  here  in  effect  a  ease  of  an  ir- 
revocable will,  whether  the  agreement 
be  carried  out  or  not."  1  Jarm.  Wills, 
18  Am.  ed.,  note  by  Bigelow. 


As  to  revoking  a  will  jointly  exe- 
cuted, see  §   458  post. 

5.  Sharkey  v.  McDermott,  91  Mo. 
647,  60  Am.  Rep.  270,  4  S.  W.  107. 

6.  Davis  V.  Hendricks,  99  Mo.  478. 
And  see  Snyder  v.  Snyder,  77  Wis. 
95.  45  N.  W.  818,  where  specific  per- 
formance was  refused. 

An  agreement  simply  to  educate 
and  treat  a  child  as  one's  own  is  not 
an  agreement  to  will  property  to  the 
child,  Baumann  v.  Russian,  129  P. 
986,  164  Cal.  5S2.  See  as  to  prede- 
cease of  a  son,  Prater  v.  Prater,  94 
S.  E.  267,  132  P.  147,  89  Kan.  480, 
Cf.  Austin  V.  Davis.  128  Ind.  472,  25 
Am.  St.  Rep.  456,  12  L.  R.  A.  120,  26 
N  E.  890. 

7.  Bradford  Surrogate  in  Day,  Ex 
parte,  1  Bradf.  467;  cases  cited  in 
nexf-  section;  Schumacher  v.  Schmidt, 
44  Ala.  454,  4  Am.  Rep.  135.  As  to  a 
will   given  upon    some    consideration 


572 


CHAP.  I.]  WILLS    UPON    VALUABLE    CONSIDERATION.  §    455 

But  the  evidence  to  establish  such  an  agreement,  derogatory  to 
a  testator's  usual  right  of  disposition  and  revocation  at  pleasure, 
must  be  full  and  satisfactory  and  not  supplied  by  presumptions 
alone ;  ^  and  there  should  be  consideration  for  the  agreement.^ 

§  455.  Joint  or  Mutual  Wills. 

It  is  also  under  the  head  of  joint  or  mutual  wills  that  our  mod- 
em courts  often  discuss  this  irrevocable  quality  of  g,  will  under  ex- 
ceptional circumstances  such  as  import  a  valuable  and  reciprocal 
consideration.  And  it  is  here  too  that  courts  of  equity  take  up  the 
difficult  problem  of  enforcing  a  specific  performance,  so  to  speak, 
of  the  testamentary  disposition,  or  rather  of  a  testamentary  com- 
pact, involving  the  making  of  the  joint  or  mutual  will  in  accord- 
ance with  the  mutual  agreement  of  the  parties.  One  promises  to 
make  a  will  of  all  his  property  in  favor  of  a  second  person,  who  in 
consideration  thereof  agrees  to  make  a  similar  will  in  favor  of  the 
first:  the  advantage  thus  to  accrue  being  to  such  of  the  two  as  may 
happen  to  survive  the  other.  Or  the  joint  consideration  may  re- 
late to  a  disposition  in  favor  of  third  persons;  though  here,  as  we 
shall  see,  courts  are  not  so  well  disposed  to  enforce  the  cumbrous 

by  way  of  an   independent   covenant,  105  N.  W.  499,  129  Iowa,  351;   Tus- 

see  Armstrong  v.  Armstrong,  4  Baxt.  sey  v.  Owen,  52  S.  E.  128,  139  N.  C. 

357.     That    transactions   for   posthu-  457   (a  contract  is  entire  and  indivis- 

mous   effect   are  not   usually  wills   if  ible  to  give  "one-fourth"  of  estate); 

of   a   revocable   character,  see    supra,  105  N.  W.  399,  125  Iowa,  707  (breach 

§   274;    97  Penn.  St.   313.  by  the  promisee)  ;  66  P.  92S,  40  Oreg. 

8.  1  Bradf.  467.  See  the  case  of  252;  Teske  v.  Dittberner,  98  N.  W. 
Bolman  v.  Overall,  80  Ala.  451,  60  57,  70  Neb.  544;  Howe  v.  Watson,  60 
Am.  Rep.  107,  where  an  executed  will  N.  E.  415,  179  Mass.  30;  Mueller  v. 
was  in  fact  delivered.  Batcheler,  109  N.  W.   186,   131  Iowa, 

9.  Edson  v.  Parsons,  155  X.  Y.  265,  650;  Murtha  v.  Donohoo,  136  N.  W. 
50  N.   E.  265.  158,  149  Wis.  481;  Owens  v.  McNally, 

1.  Swann  v.  Housman,  90  Va.  815.  113  Cal.  444,  33  L.  R.  A,  369,  45    P. 

See,  further,  Belt  v.  Lazenby,  53  S.  710   (niece  claiming  promise  of  whole 

E.  81,  126  Ga.  767    (specific  perform-  property,    where    the    testator    mar- 

ance  as  to  specific  property  promised)  ;  ried   afterwards);    Ide   v.   Brown,   70 

98    N.    Y.    S.    934     {quantum     meruit  N.  E.   101,  178  N.  Y.  26    (insufficient 

where  after  faithful  service  there  had  consideration)  ;   69  N.  E.  118,  177  N". 

been  a  rupture)  ;  Brandes  v.  Brandes,  Y.   39. 

573 


§    456  LAW    OF    WILLS.  [pAET  V. 

arrangement;  for,  as  to  a  practical  operation  of  the  compact,  sim- 
plicity as  to  terms  and  the  parties  embraced  under  it  is  desirable. 
In  short,  parties  may  agree  between  themselves  to  execute  mu- 
tual and  reciprocal  wills ;  which,  though  remaining  revocable  upon 
due  notice  by  either  of  an  intention  to  revoke,  become,  upon  the 
death  of  one,  fixed  obligations,  of  which  equity  will  assume  the  en- 
forcement on  an  ultimate  beneficiary's  behalf  if  the  survivor  at- 
tempts to  impair  them  by  his  subsequent  testament.^  And  this  on 
the  ground,  that  the  survivor  was  bound,  and  that  the  ultimate 
beneficiary  had  no  adequate  remedy  at  law.^ 

§  456.  The  Same  Subject;  Joint  or  Mutual  Wills  as  to  Probate. 

When  these  mutual  or  conjoint  wills  first  came  up  in  practice, 
the  common  law  and  spiritual  courts  of  England  pronounced 
against  thean.  A  mutual  or  conjoint  will,  it  was  said,  is  unknown 
to  the  testamentary  law  of  this  country.*  These  courts  saw,  doubt- 
less, that  to  give  the  contract  under  which  such  wills  were  made 
a  practical  operation  as  mutually  intended  was  beyond  their  own 
jurisdiction ;  and  regarding  the  instrument  simply  as  a  will  the 
irrevocable  nature  of  such  a  writing  interposed  to  their  minds  a 
strong  ground  of  objection.  The  same  unfavorable  position  is 
taken  by  some  of  our  earlier  American  cases.^ 

But  the  later  and  better  opinion,  in  both  England  and  the  United 
States,  treats  the  conjoint  or  mutual  will  as  capable  of  probate, 
provided  it  has  been  executed  with  all  the  statute  formalities 
requisite  for  other  wills,  and  has  not  been  revoked  by  some  later 
instrument.  The  real  point  of  deci'sion  by  Sir  John  ISTicholl  in 
Hobson  V.  BlacMmrn  ^  (the  leading  ease  adverse  to  such  wills),  was 
that  such  an  instrument,  though  jointly  executed,  could  not  be  set 

2.  Edson  V.  Parsons,  155  N.  Y.  2G5,  burn,  1  Add.  277,  per  Sir  John 
566,  50  N.  E.  265.  Nicholl. 

3.  lb.  5.  Clayton  v.  Liverman,  2    Dev.    & 

4.  1  Wms.  Exrs.  10,  124;  Darling-  Bat.  558,  Daniel,  J.,  dissenting;  Wal- 
ton V.  Pulteney,  1  Cowp.  268,  per  ker  v.  Walker,  14  Ohio  St.  157,  82 
Lord    Mansfield;     Hobson    v.     Black-  Am.  Dec.  474. 

6.  Hobson  v.  Blackburn,  supra. 

574 


CHAP.  I.]  WILLS    UPON    VALUABLE    CONSIDEK^VTION.  §    457 

up  in  probate  against  the  later  will  of  one  of  the  parties  which  re- 
vokes his  share  of  the  mutual  disposition;  in  other  words  it  only 
denied  the  theory  that  joint  wills  were  irrevocable,  in  the  strict  tesr- 
tamentiary  sense,  unless  by  the  joint  O'r  mutual  concurrence  of  the 
testators.  Joint  dispositions  of  property,  under  a  testamentary 
instrument,  are,  therefore,  though  irrevocable  in  equity  a?  a  com- 
pact, revocable  as  a  will  by  either  testator  in  the  usual  manner  so 
far  as  relates  to  his  own  disposition.  But,  on  the  other  hand,  if 
either  testator  dies  without  revoking  his  disposition,  the  will  may 
be  admitted  to  probate  as  his  last  and  separate  will,  on  proof  of  du3 
execution  as  in  other  cases,  notwithstanding  some  one  else  executed 
and  disposed  of  property  by  the  same  instrument.^  Hence  a  con- 
joint or  mutual  will,  is  not  necessarily  invalid,  even  when  viewed 
for  probate  merely  and  in  the  sample  sense  of  a  testament.^  That 
the  will  happens  to  be  made  in  conformity  to  some  agreement,  or 
imports  on  its  face  a  mutuality  of  testamentary  purpose,  and  a  com- 
pact not  to  revoke  without  a  joint  assent,  does  not  defeat  its  char- 
acter as  a  will.^ 

§  457.  The  Same  Subject:   Some  Cases  show  Reserve  and  at- 
tempt Distinctions. 
But  some  of  the  cases  which  concede  that  such  complex  wills 
may  pass  to  probate,  discuss  the  doctrine  with  reserve  and  attempt 

7.   Stracey's   Goods,  Dea.  &  Svv.   6;  8.    lb. 

Lovegrove's  Goods,  2  Sw.  &  Tr.  453;  9.   This   whole  subject   is   discussed 

L.  R.  4  P.  C.  236;  Diez  Re,  50    N.  Y.  with    masterly     force     by     Bradford, 

88 ;   Dufour  v.   Pereira,   1   Dick.   419 ;  Surr.,   in  Day,  Ex  parte,  supra,    and 

Day,  Ex  parte.  1  Bradf.   (N.  Y.)   467;  the    doctrine   of   the   text    is   broadly 

Evans  v.   Smith,  28   Ga.   98;    73  Am.  asserted.    Reciprocal  wills  seem  to  be 

Dec.   751;    March   v.   Huyter,  50  Tex.  sanctioned     by    the    civil   law.      lb.; 

243;   Schumacher  v.  Schmidt,  44  Ala.  Domat,  pt.  2,  lib.  3,  tit.  1,  §   8,   art. 

454,  4  Am.  Rep.  135.     Where  husband  20.  Under  the  Louisiana  code  "unity 

and  wife  made  a  joint  will  .the  court  of  confection"   is  prohibited;    but   as 

upon  the  wife's  death  granted  probate  to  how  far  this  applies,  see  Wood  v. 

of  so  much  of  the  instrument  as    be-  Roane,    35    La.    Ann.   865.    And    see 

came  operative  upon  her  death.  Piazzi  Carle  v.  Miles,  132  P.  146,  89  Kans. 

Smith  Re   (1898),  P.  7.     And  see  Al-  540. 
lardice    v.    Allardice     (1911),    A.    C. 
730. 

575 


§    457  LAW    OF    WILLS.  [PAET  V. 

some  distinctions;  shrinking  evidently  from  sanctioning  methods 
of  disposition  so  unusual,  beyond  what  the  necessities  of  the  case 
actually  call  for.  Hence  the  law  of  mutual  wills  is  still  in  a  some- 
what confused  state,  regarded  as  a  doctrine  of  general  jurispru- 
dence. While  admitting  that  two  or  more  persons  may  execute  a 
joint  will  capable  of  operating  as  if  executed  separately  by  each 
testator,  and  requiring  a  separate  probate  on  the  death  of  each, 
some  cases  appear  to  confine  the  rule  to  wills  which  are  to  operate 
exclusively  in  favor  of  the  survivor.  They  refuse  to  extend  the 
rule  so  as  to  admit  to  probate  a  will  which  treats  the  separate 
property  of  each  owner  as  a  joint  fund  and  bequeaths  or  devises  in 
favor  of  third  parties.^  The  reciprocal  or  mutual  will,  it  is  said, 
amounts  simply  to  the  separate  will  of  the  first  decedent;  but  the 
joint  will  which  disposes  to  third  parties  is  more  complicated  and 
ought  not  to  be  admitted  to  probate.^ 

Such  a  distinction  appears  to  lose  sight  of  the  vital  element  to 
such  transactions,  namely,  a  valuable  and  mutual  consideration  in- 
terposed ;  it  rests  rather  upon  the  view  that  such  complex  wills  are 
impolitic  and  only  admissible  in  law  under  a  qualification.  But  we 
must  conclude  that,  at  the  present  stage  of  our  law,  the  reciprocal 
or  mutual  will  of  two  or  more  testators  stands  on  a  stronger  footing 
than  joint  wills,  or  those  joint  wills  at  least  which  are  expressed  for 
the  benefit  of  non-executing  parties.^ 

1.  Lewis  V.  Scofield,  26  Conn.  452,  ample  of  a  good  mutual  will,  jointly 
68  Am.  Dec.  404;  State  Bank  v.  Bliss,  executed.  Two  sisters,  J.  and  P., 
67  Conn.  317,  35  A.  255.  signed     a     duly     attested    instrument, 

2.  Walker  v.  Walker,  14  Ohio  St.  substantially  as  follows:  "Know  all 
157,  82  Am.  Dec.  874.  And  see  obser-  men  that  we,  J.  and  P.,  do  covenant 
rations  of  court  in  Schumacher  v.  and  agree  that,  for  the  love  we  bear 
Schmidt,  supra;  35  La.  Ann.  865.  A  to  each  other,  whichever  of  us  be  the 
joint  will  of  sisters  presenting  a  longest  lived  shall  be  the  heir  of  the 
sclieme  of  disposition  which  it  was  other."  Evans  v.  Smith,  28  Ga.  98, 
legally  impossible  to  effectuate  upon  73  Am.  Dec.  751.  And  see  Lewis  v. 
the  death  of  one  only  of  them  was  Scofield,  26  Conn.  452,  68  Am.  Dec. 
disregarded  and  the  estate  distributed  404.  A  will  like  this,  it  is  suggested, 
as  intestate  estate  in  67  Conn.  317,  construed  according  to  the  legal  effect 
35   A.   255.  of   its   language,   undertakes   only    to 

3.  The   following  serves   as  an   e.\-  operate  on  the  will  of  the  sister  who 

576 


CnAP.  I.]  WILLS   UPON  VALUABLE   CONSIDEBATION".  §    458a 

§  458.  A  Will  jointly  executed  which  disposes  only  of  one  Per- 
son's Property  is  not  a  Joint  Will. 

If  the  property  disposed  of  by  a  testament  belongs  to  one  only 
of  the  executing  parties,  the  mere  joinder  of  another  in  the  execu- 
tion does  not  make  the  instrument  what  the  law  terms  a  joint  or 
mutual  will.  As  where,  for  instance,  a  husband  and  wife  join  in 
devising  real  estate  by  a  will  of  which  the  husband  was  the  sole 
owner.'*  Such  a  will,  though  joint  in  form,  must  be  regarded  as 
the  will  of  the  party  who  owns  the  property,  and  the  execution  of 
the  non-owner  is  mere  surplusage. 

But  where  the  joint  parties  to  a  will  had  a  joint  power  of  dis- 
posal of  the  property  or  its  joint  ownership  neither  can  revoke  the 
joint  will  without  the  other.^ 

§  458a.  Right  to  revoke  a  Joint  or  Mutual  Will. 

It  would  appear  that  at  all  events,  either  party  to  a  joint  or  mu- 
tual will,  and  a  survivor  especially,  has  the  right  during  life  to 
revoke  that  will  as  concerns  his  own  disposition,  so  that  it  cannot 
be  set  up  in  probate  as  his  last  testament ;  ^  but  that  in  equity,  at 
all  events,  a  subsequent  revocation  which  was  not  mutual  cannot 
destroy  the  trust  or  compact  created  thereby.^  An  issue  upon  such 
a  revoking  will  may  raise  the  usual  questions  of  validity.^ 

should   first  die,   and   only   upon   her  4.  Rogers,  Appellant,   11  Me.    303; 

estate;   and  predecease  without  revo-  Allen  v.  Allen,  28  Kan.  18. 

cation    settles    the    disposition.         In  5.  Breatwitt    v.    Whlttaker,      8    B. 

Diez  Re,   50  N.   Y    88,   husband   and  Mon.   530    (husband   and   wife).    One 

wife     devised     reciprocally     to     each  spouse  cannot  devise  or  bequeath  the 

other  by  such   a  will.    And   Betts   v.  marital  property  of  the  other.    Prince 

Harper,    39    Ohio   St.    639,    supersedes  v.  Prince,   117  P.  255,  64  Wash.   553. 

Walker,  14  Ohio  St.  157,  82  Am.  Dec.  6.    Dicta    in   Hobson   v.   Blackburn, 

874,  as  to  the  impolicy  of  such  joint  1  Add.  277;  Betts  v.  Harper,  39  Ohio 

wills.     See   as   to  proof  of  agreement  St.    157;    Davis's   Will,   120   N.   C.   9, 

136  N.  Y.  S.  961.   The  mere  fact  of  mak-  58    Am.    St.    Rep.    771,    38    L.    R.    A. 

ing  a  joint  or  mutual  will   does   not  289,   26  S.  E.   636. 

import     a     mutual     contract     which  7.   Keith    v.    Miller,     174    111.    64. 

equity     should     specifically      enforce.  Peoria  Humane  Society  v.  McMartrie, 

Wngner  v    Marr.  165  S.  W.  1027  and  82  N".  E.  319,  229  111.  519    (revocation 

citations     (Mo.    1914).  by    subsequent   marriage).     Cf.    Gold- 

37  577 


§  459 


LAW    OF    WILLS, 


[PAET  V. 


§  459.  Where  Probate  must  be  delayed  until  Both  or  All  Tes- 
tators die. 
Where  the  transaction  we  are  considering  is  6iich  that  the  joint 
or  mutual  disposition  cannot  take  the  effect  intended  until  both  or 
all  of  the  testators  die,  public  policy  receives  a  rude  shock.  The 
probate  courts  of  England  and  some  of  our  States,  however,  stand 
by  the  consequences,  and  pronounce  that  probate  must  be  delayed 
in  such  a  case  until  both  or  all  of  the  testators  die.^  But  delicate 
and  important  questions  in  this  connection  remain  unanswered; 
as,  for  instance,  how  the  first  decedent's  estate  shall  meantime  be 
settled  and  disposed  of  and  whether  a  title  can  in  any  sense  devolve 
under  his  will ;  and  the  latest  judicial  disposition  must  be  to  find 
some  way  out  of  the  dilemma.-^ 


Strieker's  Will,  84  N.  E.  581,  108  N. 
Y.  S.  489  (statute)  ;  Sandberg's  Will, 
134  N.  Y    S.  869. 

8.  §  456;  Cawley's  Estate  162 
Penn.  St.  520,  29  A.  701;  75  N.  Y.  S. 
542.  See  Stone  v.  Hoskins,  (1905)  P. 
194  (on  breach  by  one  party  by  a 
fresh  will  the  survivor  has  no  relief)  ; 
Dixon  V.  Solicitor,  (1906)  P.  42; 
Prince  v.   Prince,  supra. 

9.  Raine  Re,  1  Sw.  &  Tr.  144.  And 
see  Schumacher  v.  Schmidt,  44  Ala. 
454,  4  Am.  Rep.  135;  Davis's  Will, 
120  N.  C.  9,  58  Am.  St.  Rep.  771,  26 
S.  E.   636. 

1.  In  Davis's  Will  it  is  held  that 
while  an  instrument  purporting  to  be 
the  joint  will  of  two  persons  cannot 
be  probated  as  the  will  of  both,  while 
one  of  the  parties  is  living,  it  may  be 
probated,  on  the  death  of  one,  as  the 
separate  will  of  that  party,  and  if  not 
revoked  afterwards  by  the  survivor, 
be  probated  upon  the  survivor's  death, 
as  to  that  party's  property  tiierein 
mentioned.    And  see   (1898)   P.  7. 

In  Ohio  the  latest  decisions  give  a 
heartier  sufiport  to  the  policy  of  joint 

5 


wills  than  formerly;  and  it  is  held 
that  tenants  in  common  of  land,  own- 
ing personal  property  in  severalty, 
may  make  a  joint  will  disposing  of 
all  their  property  severally,  which 
will  take  effect  on  the  death  of  all, 
Betts  V.  Harper,  39  Ohio  St.  639.  So 
far  as  Walker  v.  Walker,  14  Ohio  St. 
157,  intimates  that  the  policy  of  Ohio 
is  opposed  to  joint  wills,  it  is  here 
reversed.  In  the  present  case  the  two 
testators  desired  to  devise  to  A.  and 
B.  the  undivided  share  which  each 
had  in  the  real  estate.  They  could  have 
executed  separate  wills,  but  preferred 
to  make  a  joint  will.  This  instrument 
was,  in  effect,  the  separate  will  of 
each,  and  either  on<>  might  have  re- 
voked it  so  far  as  it  was  her  will. 
On  the  death  of  the  first  testator,  the 
instrument  might  have  been  admitted 
to  probate  as  her  wrll;  on  the  death 
of  the  other  it  might  have  been  ad- 
mitted as  the  will  of  that  person;  but 
not  being  offered  at  all  until  the 
death  of  both  testators,  it  was  prop- 
erly admitted  to  probate  as  the  will 
of  eacli   and  both. 


78 


CHAP.  I.]  WILLS    UPON   VALUABLE    CONSIDERATION. 


400 


§  460.  Joint  or  Mutual  Will  conditionally  expressed. 

Where  a  joint  will  is  expressed  to  take  effect  conditionally  or 
upon  a  contingency,  and  the  contingency  does  not  happen,  the  joint 
will  is  inoperative  even  to  revoke  a  previous  will.^ 


In  Kentucky  a  joint  will  executed 
by  two  brothers,  who  died  a  few  years 
apart,  was  admitted  in  probate  as  the 
will  of  each  in  turn,  and  afterwards 
pronounced  a  valid  instrument.  Hill 
V.  Harding,  92  Ky.  76,  17  S.  E.  199, 
437. 

But  according  to  the  view  taken 
in  Arkansas  a  joint  will  conditioned 
to  take  effect  upon  the  death  of  both 
is  invalid;  and  a  will  must  take  ef- 
fect at  the  testator's  death  and  not 
at  the  more  remote  period.  Hershey 
V.  Clark  35  Ark.  17,  37  Am.  Rep.  1. 
It  is  also  suggested  in  this  case  that 
neither  law  nor  equity  ought  to  en- 
force a  contract  as  irrevocable  which 
allows  one  not  only  to  denude  liimself 
of  all  control  of  all  he  then  possesses, 
but  also  of  all  that  he  may  afterwards 
acquire.  Where  a  husband  and  wife 
agree  upon  a  disposition  of  their 
property  in  case  of  death,  and  the 
husband  prepares  two  wills  at  the 
same  time  in  accordance,  both  wills 
sliould  be  read  and  construed  to- 
gether.   Keith   V.  Miller,   174  111.   64. 

579 


See  Gerbrich  v.  Freitag,  73  N.  E. 
338,  213  111.  552,  104  Am.  St.  Rep. 
234  (no  suspension  until  death  of 
survivor) . 

2.  Hugo's  Goods,  2  P.  D.  73.  Here 
husband  and  wife  executed  a  joint 
will,  which  was  expressed  to  take  ef- 
fect in  case  they  should  be  called  out 
of  the  Avorld  at  one  and  the  same 
time,  and  by  one  and  the  same  acci- 
dent. The  husband  died  in  the  life- 
time of  the  wife,  and  it  was  held  that 
the   contingency  did  not  happen. 

As  to  the  joint  or  mutual  wills  of 
husband  and  wife,  see  also  §  62 ; 
Brown  v.  Webster,  13  N.  W.  185,  90 
Neb.  591  (oral  agreement  and  joint 
performance  as  to  reciprocal  wills)  ; 
Alter's  Appeal,  67  Penn.  St.  341; 
Wyche  v.  Clapp,  43  Tex.  543;  Mc- 
Clanahan  v.  McClanahan,  137  P.  479; 
77  Wash.  138   (oral  contract  only). 

The  mei'e  expression  of  an  intention 
to  leave  property  to  A.  is  no  contract 
to  devise  or  bequeath.  Stillwell  v. 
Pateman,  145  N.  Y.  S.  321. 


PART  VI. 

CONSTRUCTION  OF   WILLS. 


CHAPTER  I. 

GENERAL,    RULES    OF    TESTAMENTARY    CONSTRUCTION. 

§  461.  Modern  Precedents  Many ;  Deeds  and  Wills  compared. 

The  great  and  growing  host  of  cases  confronting  us  in  the  re- 
ports, which  involve  the  interpretation  and  effect  of  particular  tes- 
taments and  testamentary  provisions,  by  no  means  betokens  a  con- 
cretion into  well-ordered  principles.  It  is  rather  a  multitude  of 
precedents  without  array ;  each  serving  its  own  capricious  purpose 
except  for  some  lesser  rules  of  constraint.  So  long  as  the  world 
lasts,  those  diversely  interested  will  dispute  the  meaning  of  written 
phrases  on  which  turn  their  several  pecuniary  rights ;  and  no  writ- 
ings can  be  more  fruitful  of  litigation,  unless  the  tie  of  family  binds 
fast,  than  those  mysteriously  framed  and  unexplained  by  which 
the  dead  has  sought  to  place  fetters  upon  the  living ;  the  more  so, 
that  men  reputed  among  the  wisest  of  their  day  in  affairs,  have 
left  wills  behind  them  the  strangest,  the  most  ambiguous,  the  most 
carelessly  drawn  of  all  documents.  The  law  itself  fosters  uncer- 
tainty in  such  cases  by  refusing  to  subject  this  class  of  instruments 
to  rigid  rules  of  construction,  but  making  wdiat  it  may  of  a  testa- 
tor's language,  be  it  as  slovenly  and  illiterate  as  it  may ;  our  policy 
being  to  give  the  greatest  possible  scope  to  each  dying  owner's 
wishes,  provided  he  executed  the  will  with  due  formalities  and 
within  his  legal  rights.  Indeed,  without  family  dissension  at  all, 
resort  is  aften  had  to  the  court  to  determine  how  the  particular  will 
shall  be  construed,  so  as  to  enable  executors  and  trustees  to  perform 
their  duties  intelligently. 

There  exists,  then,  this  striking  difference  between  deeds  and 
wills-  that  deeds,  and  most  especially  deeds  of  real  estate,  employ 
a  precise  phraseology,  whose  meaning  is  well  defined  by  the  courts 

580 


CHAP.  I.]  GENERAL   KULES    OF    CONSTRUCTION.  §    463 

and  adhered  to  in  common  practice;  whereas  wills  may  vary  in 
expression  as  well  as  idea,  according  to  the  governing  ideas  of  each 
testator.  Deeds  pursue  a  certain  form  familiar  to  professional  ad- 
visers; while  wills  on  the  other  hand  are  often  drawn  up  in  con- 
tempt of  professional  advice,  and  may  employ  terms  as  informal 
as  a  private  letter  or  business  memorandum ;  many  a  disposer,  in 
fact,  flattering  himself  that  simple  words  make  one's  meaning  the 
clearer.-^  This  peculiar  indulgence  of  our  law  to  wills,  Lord  Ken- 
yon  and  other  judges  have  openly  regretted;  ^  but  modem  courts 
show  no  disposition  to  withdraw  it,  preferring  on  the  whole  the 
risk  of  increased  uncertainty  and  litigation  to  that  of  perverting 
one's  disposition,  on  technical  grounds,  from  what  he  obviously  in- 
tended. Deeds  and  verbal  precision,  too,  we  associate  with  trans- 
fers of  land ;  while  wills  which  pass  the  title  to  the  bulk  of  one's 
estate,  to  his  property,  both  real  and  personal,  demand  the  widest 
latitude  of  expression. 

§  462.  Rules    of    Testamentary    Construction    are    of    Limited 
Scope. 

In  wills,  therefore,  a  testator's  meaning  is  the  great  criterion, 
so  far  as  mere  interpretation  in  concerned.  What  he  intended  the 
courts  strain  to  discover.  There  are  rules,  those  which  restrain 
perpetuities,  for  instance,  or  forbid  mortmain,  which  must  operate 
above  and  independently  of  any  testator's  intention,  upon  reasons 
of  sound  policy ;  but  a  mere  rule  of  testamentary  construction  em- 
bodies a  simple  presumption,  and  no  more,  namely,  that  the  tes- 
tator intended  one  disposition  rather  than  another  or  any  other. 
Hence  is  it  that  a  court  may  lay  it  down,  in  case  of  doubt,  that  the 
testator  probably  meant  to  dispose  after  a  certain  fashion,  since 
otherwise  he  would  have  transgressed  the  rule  against  perpetuities, 
mortmain,  or  the  like,  and  defeated  his  own  intention.     Our  rules 

1.  Wills  are  to  be  construed    more  117  Md.  265;   Wallace  v.  Noland,  93 

liberally   than   wills,   in   order   to   ef-  N.  E.  956,  246  111.  535. 

feetuate,   if   possible,  the   maker's   in-  2.  Lord  Kenyon  in  Denn  v.  Mellor, 

tent.    Barnett  v.  Barnett,  83  A.  160,  5  T.  R.   558,   561. 

581 


§    462  LAW   OF   WILLS.  [PAET  VI. 

of  construction  determine,  then,  the  construction  which  courts  are 
bound  to  put  upon  particular  words,  phrases,  and  forms  of  testa- 
mentary disposition,  in  question,  in  the  absence  of  one's  sufficiently 
declared  intention  to  the  contrary.^  A  testator  cannot  override 
rules  founded  in  sound  policy ;  but  any  mere  rule  of  construction 
may  be  overborne  by  the  well-declared  purpose  of  his  will. 

It  follows  that  in  our  modern  practice,  English  and  American, 
these  rules  of  testamentary  construction  have  but  a  limited  and 
subordinate  application.  They  come  chiefly  into  play  where  the 
testator  has  omitted  matters  of  detail  not  affecting  the  vital  char- 
acter of  the  instrument,  or  where  he  has  employed  some  careless 
and  ambiguous  expression  which  requires  to  be  toned  or  explained ; 
but  in  general  questions  where  the  whole  frame  and  language  bear 
upon  the  particular  construction,  such  rules  are  of  little  practical 
avail.*  Certain  words  and  expressions,  when  standing  unex- 
plained, acquire  from  these  precedents  a  somewhat  definite  mean- 
ing; but  if  it  could  once  be  a  question  whether  or  not  technical 
phrases  should  conclude  a  testator's  intention,  it  is  no  longer  doubt- 
ful that  his  intention  must  be  paramount.  The  same  literal  ex- 
pressions in  two  wills  might  demand  the  same  construction ;  but 
unless  the  two  wills  are  identical  throughout  and  dispose  of  similar 
fortunes  under  similar  circumstance  (as  can  seldom  happen),  a 
precedent  fails  of  its  full  force.  New  kinds  of  property,  moreover, 
have  come  into  existence ;  new  and  complex  modes  of  transfer  and 
disposition  attend  the  modern  advance  of  society;  and  under  any 
and  all  circumstances  the  language  of  wills  may  be  presumed  to 
express  the  sense  of  the  testator  according  to  his  own  age  and  sur- 
roundings, rather  than  with  any  permanent  or  universal  meaning. 

3.  See  Hawkins's  Construction  of  ways  contains  the  saving  clause,  '  un- 
Wills,  preface.  "A  rule  of  construe-  less  a  contrary  intention  appear  by 
tion,"  observes  this  careful  writer,  the  will';  though  some  rules  are 
"  may  always  be  reduced  to  the  fol-  much  stronger  than  others,  and  re- 
lowing  form:  certain  words  or  ex-  quire  a  greater  force  of  intention  ia 
pressions,  which  may  mean  either  x  the  context  to  control  them."  lb. 
or  y,  shall,  prima  facie,  be  taken  to  4.  2  Jarm.  Wills,  838. 
mean   x.     A   rule  of   construction   al- 

582 


CHAP.  I.]  GENERAL   RULES    OF    CONSTRUCTION.  §    463 

§  463.  The  Same  Subject. 

A  bias  at  one  time  in  favor  of  the  precedents  of  construction  and 
at  another  a^inst  them  may  be  gathered  from  the  language  of 
courts  and  t^xt-writers  on  this  subject.  Jarman,  a  respected 
authority,  while  deploring  that  license  of  construction  which  sets 
up  the  intention  to  be  collected  upon  arbitrary  notions  as  para- 
mount to  the  authority  of  cases  and  principles,  takes  care  to  remind 
his  readers  that  while  courts  speak  of  the  testator's  intention  as 
the  governing  principle,  the  judges  submit  to  be  bound  by  the 
precedents  and  authorities  in  point,  and  endeavor  to  collect  the  in- 
tention upon  grounds  of  a  judicial  nature  as  distinguished  from 
arbitrary  occasional  conjecture.  "  The  court,"  observes  an  English 
judge,  "  must  proceed  on  known  principles  and  established  rules, 
not,  on  loose  conjectural  interpretations,  or  by  considering  what 
a  man  may  do  in  the  testator's  circumstances."  ^  But,  after  all, 
authority  in  the  mere  verbal  interpretation  of  wills  carries  no 
great  weight,  especially  if  the  words  and  tenor  of  the  whole  will 
are  not  absolutely  identical.^  The  construction  given  to  a  verbal 
expression  in  one  will  is  no  positive  criterion  for  all  wills  contain- 
ing the  same  expression.^  And  one  of  the  most  eminent  American 
judges  of  his  day,  impressed  with  the  inefficiency  of  the  adjudged 
cases  as  guides  in  the  construction  of  wills,  has  doubted  whether 
any  other  source  of  enlightenment  on  this  subject  is  of  much 
assistance  than  the  application  of  natural  reason  to  the  lan- 
guage of  the  instrument  under  the  light  which  may  be  throwTi 
upon  the  intent  of  the  testator  by  extrinsic  circumstances  surround- 
ing its  execution  and  connecting  the  parties  and  the  property  de- 
vised with  the  testator  and  with  the  instrument  itself.^ 

5.  lb.,   citing  Henley,   L.   K.    1  ed.  "  No  two  wills,  probably,  were    ever 
43.  written   in   precisely    the    same    lan- 

6.  See  6  H.  L.  Cas.  lOS;   4  Ch.  D.  guage   throughout;    nor   do    any    two 
68.  testators  die  under  the  same  circum- 

7.  Smith   V.    Bell,    6    Pet.    68,     per  stances    in    relation    to    their    estate, 
Marshall,   C  J.  family,    and    friends.     And    it   would 

8.  Mr.  Justice  Miller,  in  Clarke  v.  be  very  unsafe,  as  well  as  unjust,  to 
Boorman,  18  Wall.  493,  14  L.  Ed.  904:  expound  the  will  of  one  man  by  the 

583 


§    404  LAW    OF   WILLS.  [PART  VI. 

It  is  not  improbable  that  in  England,  where  so  much  of  the 
property  upon  which  wills  operate,  has  been  fettered  by  entails 
and  settlements,  more  respect  would  naturally  be  paid  to  precedents 
of  construction  than  in  the  United  States,  where  the  transmission 
of  property  is  comparatively  free.®  But  even  in  England,  as 
Jarman  admits  in  his  summary  after  carefully  collating  the  pre- 
cedents of  the  English  courts,  many  of  the  so-called  rules  of  con- 
struction involve  uncertainty  in  their  application  to  particular 
cases,  while  in  a  few  instances  the  rules  themselves  are  still  sub- 
jects of  controversy.^  The  Statute  1  Vict.  c.  26  has  settled  many 
questions  in  that  country  regarding  real  estate,  and  yet  precedents 
of  testamentary  construction  rapidly  encumber  the  reports.^ 

§  464.  Difficulty  of  applying  Rules  of  Interpretation. 

Judge  Story,  while  inculcating  the  duty  of  respecting  preced- 
ents, wherever  the  intention  of  a  testator  is  to  be  searched  out  and 
fixed,  and  those  precedents  more  especially  on  which  depend  the 
foundation  of  title  to  real  estate,  has  declared  his  own  conviction 
that  the  difficulty  of  construing  wills  in  any  satisfactory  manner 
renders  this  one  of  the  most  perplexing  branches  of  our  law.  "  The 
cases,"  to  use  his  own  words,  "  almost  overwhelm  us  at  every  step 
of  our  progress ;  and  any  attempt  even  to  classify  them,  much  less 
to  harmonize  them,  is  full  of  the  most  perilous  labor.  Lord  Eldon 
has  observed  that  the  mind  is  overpowered  by  their  multitudes,  and 
the  subtilty  of  the  distinctions  between  them.^  To  lay  down  any 
positive  and  definite  rules  of  universal  application  in  the  inter- 
pretation of  wills,  must  continue  to  be,  as  it  has  been,  a  task,  if  not 
utterly  hopeless,  at  least  of  extraordinary  difficulty.  The  unavoid- 
able imperfections  of  human  language,  the  obscure  and  often  incon- 

construction  which  a  court  of  justice  here  unless  the  facts  are  identical.   85 

had  given  to  that  of  another,  merely  Conn.  134. 

because  similar  words  were  used    in  9.  See  1  Redf.  Wills,  423. 

particular  parts  of  it."  Taney,  C.  J.,  1.  Jarm.  Wills,  839.    And  see  later 

in  Bosley  v.  Bosley,  14  How.  390,  397,  English  cases  cited. 

14  L.  Ed.  468.  2.  lb. 

Precedents  arc  of  little  consequence  3.  Jcsson  v.  Wright,  2  Bligh.  50. 

584 


CIIAr.  I.]  GENERAL   RULES    OF    CONSTEUCTIOISr.  §    465 

sistent  expressions  of  intention,  and  the  utter  inability  of  the 
human  mind  to  foresee  the  possible  combination  of  events,  must 
forever  afford  an  ample  field  for  doubt  and  discussion,  so  long  as 
testators  are  at  liberty  to  frame  their  wills  in  their  own  way,  with- 
out being  tied  do\vTi  to  any  technical  and  formal  language.  It 
ought  not,  therefore,  to  surprise  us,  that  in  this  branch  of  the  law 
the  words  used  should  present  an  infinite  variety  of  combinations, 
and  thus  involve  an  infinite  variety  of  shades  of  meaning,  as  well 
as  of  decision."  *  Time  adds  to  the  force  of  these  utterances  which 
were  made  from  the  bench  nearly  a  century  ago. 

"  Of  all  legal  instruments,"  to  quote  from  Justice  Miller,  "  wills 
are  the  most  inartificial,  the  least  to  be  governed  in  their  construc- 
tion by  the  settled  use  of  technical  legal  terms,  the  will  itself  being 
often  the  production  of  persons  not  only  ignorant  of  law  but  of  the 
correct  use  of  the  language  in  which  it  is  written."  ^  And  in 
general,  courts,  at  the  present  day,  are  not  inclined  to  follow  rules 
of  construction  blindly,  but  interpret  reasonably  in  each  particular 
case,  if  possible.^* 

§  465.  Construction  aided  or  unaided  by  Extrinsic  Evidence; 
the  Latter  here  considered. 
The  construction  of  any  will  may,  according  to  the  special  cir- 
cumstances, be  treated  as  aided  or  unaided  by  extrinsic  evidence. 
It  is  the  latter  case,  and  the  usual  one,  to  which  this  chapter  must 
be  confined ;  and  we  may  observe  that  the  general  rule  of  our  law 
excludes  parol  evidence  of  what  the  testator  actually  intended, 

4.  Mr.   Justice   Story  in   Sisson    v.  Hayne  v.  Jodrell,  44  Ch.  D.  590.    De- 

Seabury,    1    Sumii.    235,    239    (1832).  cision    affirmed    by     (1891)     App.    C. 

A  will  was  construed  as  to  its  whole  304. 

meaning,  and  with  referenc-e  to  the  5.  Clarke  v.  Boorman,  18  Wall, 
use  of  certain  words  not  terms  of  art.  593,  14  L.  Ed.  904.  A  testator's  in- 
"I  repudiate  entirely,"  said  Hals-  tention  is  to  be  gathered  from  a  con- 
bury,  L.  C,  "  the  notion  of  laying  sideration  of  the  substance  and  not 
down  any  canon  of  construction  merely  the  form  of  the  will.  Univer- 
which  is  to  extend  beyond  the  par-  sity  v.  Taylor,  (1908)  P.  140. 
ticular  instrument  that  I  am  call<>d  5a.  Moon  v.  Stewart,  101  N.  E. 
to  give  an  interpretation   to."   Scale-  344,  87  Ohio  St.  349. 

685 


§  466  LAW  OF  WILLS.  [PART  VL 

except  in  equivocal  and  ambiguous  cases  to  be  noted  hereafter.® 
A  will  in  modern  times  is  a  written  instrument ;  and  the  interpreter 
of  such  an  instrument  must,  if  possible,  draw  his  conclusions  from 
an  accurate  study  of  the  document  itself,  unaided  by  external 
testimony.'^  For  what  the  instrument,  once  admitted  to  probate, 
says  plainly  upon  its  o^^^l  face  is  not  to  be  disputed  by  evidence 
aliunde.  And  if  extrinsic  evidence  must  be  introduced  at  all  to 
explain,  that  of  res  gestae  comes  first  in  order. 

§  466.  Cardinal  Rule  that  Testator's  Intention  shall  prevail. 

The  cardinal  rule  of  testamentary  construction,  as  already  inti- 
mated, is  that  the  plain  intent  of  the  testator  as  evinced  by  the 
language  of  his  will  must  prevail,  if  that  intent  may  be  carried  into 
effect  without  violating  some  deeper  principle  of  public  policy  or 
of  statute  prohibition.  And  whatever  respect  the  construction  put 
upon  corresponding  words  in  other  wills  may  deserv^e  from  the 
court  by  way  of  precedent,  this  plain  and  lawful  intent  of  the 
particular  will  should  not  be  defeated.  Courts  have  spoken  of  such 
intention  as  the  "  law,"  the  "  pole  star  "  or  the  "  sovereign  guide," 
when  referring  to  this  governing  principle  of  testamentary  causes.;  ^ 
and  the  doctrine,  in  one  formula  or  another,  is  constantly  affirmed 
in  the  reports. 

But  it  is  the  intention  of  the  testator  as  expressed  in  his  own 
will  which  governs;  and  this  paramoimt  intention  must  be  dis- 
cerned through  the  words  of  the  will  itself,  as  applied  to  the 
subject-matter    and    the    surrounding   circumstances.^      In    other 

6.  See  c.  3,  post.  v.  Laming,  2  Burr.  1112,  and  Roe  v. 

7.  Mr.  Hawkins  in  2  Jurid.  Soc.  Grew,  2  Wils.  322;  Summit  v.  Yount, 
Papers,   298,   contends  that    the    rule      109  Ind.  506;  31  Fed.  241. 

which  excludes  parol  evidence  in  aid  9.    1    Redf.    Wills,    433;     2     Jarm. 

of  interpretation  is  not,  as  high  Erig-  Wills,    838;    Parsons   v.    Winslow,     6 

lish  authorities  maintain,  a  necessary  Mass.  175,  4  Am.  Dec.  107;  Christie  v. 

result  of  the   requirement   of   a  writ-  Phyfe,   19  N.   Y.   344;    Williamson  v. 

ten    will,    but   that    Roman    jurispru-  Williamson,    4    Jones.    Eq.    281;      16 

df-nce  proves  the  contrary.  Penn.  425;    81  N.   E.   654,   196  Mass. 

8.  Lord  Halo  in  King  v.  Melling.  35;  Benner's  Will,  113  N.  W.  663, 
1    Vent.   231;    Wilmot,   C.   J.,   in   Doe  133  Wis.  325;    126    N.  Y.  S.  277;    Gro- 

586 


CHAP.  I.]  GENERAL   EULES    OF    CONSTEUCTION.  §    466 

words,  the  plain  and  unambignous  words  of  the  will  must  prevail 
and  cannot  be  controlled  or  qualified  by  any  conjectural  or  doubtful 
constructions  growing  out  of  the  situation,  circumstances  or  con- 
dition of  the  testator,  his  property  or  the  natural  objects  of  his 
bounty/  And  since  the  interpretation  and  exposition  of  certain 
phrases  found  in  similar  wills,  are  entitled  to  weight,^  it  may 
sometimes  happen  that  the  intention  as  expounded  by  the  courts 
differs  from  the  testator's  own  private  intention  and  understanding. 
For  the  true  inquiry  in  interpreting  the  will  is  not  what  the  testator 
meant  to  express,  but  what  the  words  used  in  the  will  express.^ 

Yet  every  will  should  be  interpreted,  as  far  as  possible,  from 
the  standpoint  apparently  occupied  by  the  testator;  and  attendant 
circumstances,  such  as  the  condition  of  his  family  and  the  amount 
and  character  of  his  property,  may  and  ought  to  be  taken  into 
consideration,  as  part  of  the  res  gestae  where  the  language  is  not 
plain  nor  the  meaning  obvious.*  And  the  testator's  intention 
ought  at  least  to  control  any  arbitrary  rule,  however  ancient  its 
origin,  which  is  unreasonable  or  not  well  established,  or  doubtful 
in  its  immediate  application.^  But  if  there  are  two  intentions  on 
the  face  of  the  will,  one  of  which  is  general  and  consistent  with 
the  rules  of  law,  and  another  special  and  inconsistent  with  the 

ther's     Estate,    78   A.    88,    229    Penn.  139;    Brown    v.    Thorndike,    15    Pick. 

186;    Russell   v.   Hartley,   78   A.   320,  388;  Postlethwaite's  Appeal,  68  Penn. 

83    Conn.    654;    Robinson   v.    Martin,  St.  477;    Sisson  v.  Seabury,   1   Sumn. 

93  N.  E.  488,  200  N.  Y.  159;   Down-  235;    Perry    v.    Hunter,   z   R.   I.   80; 

ing  V.  Grigsby,  96  N.  E.  513,  251  HI.  Brown  v.  Bartlett.  58  N.  H.  511;   82 

568;     140    N.     W.    5,    152   Wis.    275;  K  E.  267,  229   111.  507;    Eidt  v.   Eidt, 

Spinney  v.  Eaton,  87  A,  378,  111  Me.  127   N.    Y.    S.    680;    154    S.    W.    121, 

1,  46  L.  R.  A.  (N.  S.)   535;  88  A.  705,  248   Mo.   184     (will    dictated    to    an 

77  N.  H.  108.  unskilled  scrivener  just  before  testa- 

1.  lb.  And  see  2  Wms.  Exrs.  1078;  tor  underwent  a  serious  surgical 
Greenough  v.  Cass,  64  N.  H.  326,  10  operation)  ;  102  N.  E.  306,  215  Mass. 
A.   757.  62;    Moore's    Estate,    88    A.    432,    241 

2.  Supra,  §  463.  Penn.  253;   143  N.  W.  1050,  155  Wis. 

3.  Pack  V.  Shanklin,  43  W.  Va.  304,  46. 

27  S.  E.  389.  5.    Shriver   v.   Lynn,    2    How.    43; 

4.  Smith  V.  Bell,  6  Pet.  68;  Blake  Lord  Mansfield  in  Perrin  v.  Blake,  4 
V.   Hawkins,   8   Otto,   315,   25   L.   Ed.      Burr.  2579. 

587 


§    468  LAW    OF   WILLS.  [pART  VI. 

rules  of  law,  the  latter  yields  to  the  former,  and  if  necessary  to 
give  effect  to  the  will  may  be  rejected  altogether.® 

§  467.  The  Same  Subject. 

"  The  struggle  in  all  such  cases,"  observes  Judge  Story,  "  is  to 
accomplish  the  real  objects  of  the  testator,  so  far  as  they  can  be 
accomplished  consistently  with  the  principles  of  law;  but  in  no 
case  to  exceed  his  intention  fairly  deducible  from  the  very  words 
of  the  will."  ^  In  fine,  where  the  meaning  of  the  language  of  the 
will  is  plain,  the  court  of  construction  does  not  go  outside  to  dis- 
cover what  the  testator  intended ;  but  where  the  provisions  are 
doubtful  or  may  admit  of  more  than  one  interpretation,  the  court 
will  put  itself  in  the  situation  of  the  testator,  in  reference  to  the 
property  and  the  relative  claims  of  the  testator's  family,  the  rela- 
tions subsisting  between  him  and  them,  and  the  circumstances 
which  surrounded  him,  in  order  to  be  enlightened.  And  herein 
lies  the  substantial  distinction  between  the  admission  and  the  non- 
admission  of  extrinsic  evidence  to  aid  in  interpreting  a  given  will.^ 

§  468.  The  Whole  Will  must  be  taken  together. 

A  testator's  intention  is,  however,  to  be  collected  from  the  whole 
will  taken  together,  and  not  from  detached  portions  alone.^  For, 
as  it  is  figuratively  said,  the  meaning  must  be  gathered  ex  visceri- 
hus  testamenti,  or  to  use  another  familiar  expression,  "  from  the 
four  corners  of  the  instrument."     All  the  papers  which  constitute 

6.  Mr.  Justice  Story  in  Nightin-  ker  v.  Wasley,  9  Gratt.  477;  2  Jarm. 
gale  V.  Sheldon,  5  Mason,  336.  Wills,    841;    9    Mod.    154;    2    W.    Bl. 

7.  Nightingale  v.  Sheldon,  5  Ma-  976;  103  111.  11;  Hoxie  v.  Hoxie,  7 
son,  336.  And  see  Blagge  v.  Miles,  1  Paige,  187;  Nightingale  v.  Sheldon, 
Story,  426;  Fenwick  v.  Chapman,  9  5  Mason,  336;  Jackson  v.  Kip,  2 
Pet.  461;   Smith  v.  Bell,  6  Pet.  68.  Paine,    366;    162    111.     267;     169     111. 

8.  See  post,  c.  3.  The  will  of  an  360,  48  N.  E.  128;  48  La.  Ann.  1033, 
illiterate  or  untrained  person  is  leni-  55  Am.  St.  Rep.  295,  20  So.  193; 
ently  regarded  in  its  expression.  Loomer   v.   Loomer,     57    A.     167,     76 

9.  Lane  v.  Vick,  3  How.  464,  11  L.  Conn.  522;  5G  A.  148,  65  N.  J.  Eq. 
Ed.  681;  Cook  V.  Weaver,  12  Ga.  47;  417. 

Jackson  v.  Hoover,  26  Ind.  511:   Par- 

588 


CHAP.  I.]  GENERAL    RULES    OF    CONSTRUCTION.  §    468 

the  testamentary  act  must  be  taken  as  one  whole,  embracing  will 
and  codicils,  and  all  papers  so  referred  to  as  to  be  incorporated 
with  the  same  in  the  probate.^  And  all  the  parts  and  provisions  of 
a  will  are  to  be  construed  in  relation  to  each  other,  and  so  as,  if 
possible,  to  form  one  consistent  whole  and  operate  together ;  and 
contradictory  clauses  should,  if  possible,  be  reconciled  accordingly.^ 

But  where  the  language  of  one  part  of  a  will  is  not  easily  recon- 
ciled with  that  used  in  another,  principal  and  subordinate  provi- 
sions should  be  construed  in  their  due  relation  to  one  another. 
Thus,  the  intent  which  is  disclosed  in  the  express  clause  of  a 
bequest  ought  to  prevail  over  the  language  used  in  making  other 
provisions  subsidiary  to  this  bequest;  unless  plainly  modified  or 
controlled  thereby.^  And  a  clearly  expressed  intention  in  one 
portion  of  the  will  is  not  to  yield  to  a  doubtful  construction,  in  any 
other  portion  of  the  instrument.* 

Hence,  too,  in  interpreting  a  will  the  testator's  general  and  con- 
trolling purpose  should  be  regarded,  rather  than  any  exalting 
and  exciting  ideas  which  may  have  dictated  the  terms  of  his  will.^ 
It  is  not  by  an  exaggerated  expression  here  and  there  that  the 
will  is  expounded,  but  by  what  on  the  whole  was  one's 
scheme  of  rational  disposition.  For  the  intent  as  gathered  from 
the  M^hole  will  overrides  all  those  technical  rules  which  relate  to 
the  construction  of  w^ords.® 

1.  Westcott  V.  Cady,  5  Johns.  Ch.  pressed  there.  Karsten  v.  Karsten, 
343,  9  Am.  Dec.  30G;   Leavens  v.  But-       98  N.  E.  947,  254  111.   480. 

ler,  8  Port.  380.  3.    See     Curtis,     J.,     in     Ward     v. 

2.  2  Jarm.  Wills,  841;  9  Mod.  154;       Amory,   1   Curt.  419;    §   478,  post. 

6  T.   R.    314;    16  Ves.   314;    82   Penn.  4.    Corrigan    v.    Kiernan,    1    Bradf. 

St.   213;    80  N.   E.  998,  226  111.  438;  (N.    Y.)    208. 

Mosser  v.   Fiske,   101  N.  E.   540,  258  5.  McDonough  v.  Murdock,  15  How. 

111.  233    (will  and  codicils  taken  as  a  410,  14  L.  Ed.  751. 

whole)  ;    Bloodgood   v.   Lewis,   102   N.  6.    Sumpter    v.    Carter,    42    S.    E. 

E.    610,   209   N.   Y.   95;    Safe  Deposit  324,    115   Ga.    893,   60   L.   R.   A.    274; 

Co     V.   Nevin,     98     N.     E.     1051,    212  Burroughs    v.    Jameson,    53    A.    688, 

Mass.  232;  Eidt  v.  Eidt,  127  N.  Y.  S.  62  N.  J.  Eq.  651;  McGuire  v.  Galla- 

680.     But   surrounding   circumstances  gher,  59  A.  445,  99  Me.  334;   50  S.  E. 

must  not  be  resorted   to   for   import-  794,   71   S.   C.   175;   Mueller  v.  Buen- 

ing  into  the  will  an  intention  not  ex-  ger,   83   S.   E.   458,   184  Mo.   458,   165 

589 


§    470  LAW   OF   WILLS.  [pAET  VI. 

§  469.  Language  taken  according  to  the  Testator's  Situation. 

Here,  let  us  observe,  of  the  testator's  language,  that  the  rule 
which  seeks  to  discover  one's  real  intention  requires  that  language 
be  taken,  so  far  as  may  be,  according  to  the  testator's  own  situation 
and  surroundings ;  according  to  the  time  and  place  in  which  he 
lived,  and  the  manners  and  institutions  which  moulded  his  char- 
acter or  to  which  on  the  whole  he  had  the  most  probable  reference. 
For  the  language  of  wills,  as  courts  have  observed,  is  not  of  uni- 
versal interpretation,  having  the  same  precise  import  in  all 
countries  and  under  all  circumstances;  but  they  are  commonly 
supposed  to  speak  the  sense  of  the  testator  according  to  the  re- 
ceived laws,  or  usages  of  the  country  where  he  is  domiciled,  by  a 
kind  of  tacit  reference ;  supposing,  of  course,  that  there  is  nothing 
in  the  language  he  uses  which  repels  or  controls  such  a  conclusion.^ 

In  general,  the  intent  of  a  testator  must  be  gathered  not  merely 
from  the  language  used  in  the  will,  but  from  that  language  in  con- 
nection with  the  law  of  the  land,  whether  of  state  or  nation,  and 
his  personal  environment.^ 

§  470.  Technical  Words;  how  far  controlled  by  Testator's  In- 
tent. 

Consistently  with  this  general  regard  to  language,  technical 
words  employed  in  a  will  are  presumed  to  have  been  used  in  their 

Am.   St.   Rep.  451,   37  L.  R.  A.    64S;  41S;   78  A.  817,  114  Md.  74;  Kahn  v. 

Hoffman   v.   N.   E.   Trust   Co.,    72   N.  Tierney,    94   N.    E.    1095,    201    N.    Y. 

E.  952,  187  Mass.  205;  76  N.  E.  1043,  5I«6;'  Pierce  v.    Root,    84   A.   295,    86 

190  Mass.  317;  91  S.  W.  921,  193  Mo.  Conn.    90;    S3    A.    795,    109   Me.    254; 

62,  4  L.  R.  A.   (N.  S.)   922;   Bennett  100  N.  E.  1105,  214  Mass.  192. 

V.  Bennett,  75  N.  E.  339,  217  111.  434,  7.   Harrison  v.  Nixon,   9   Pet.    483, 

4   L.   R.  A.    (N.   S.)    470;    82   P.    755,  9  L.  Ed.  201. 

148    Cal.    184;    Sigel's   Estate,    62   A.  8.    Pennoyer   v.    Slicldon,   4   Blatcli. 

175,  213  Penn.   14,   110  Am.  St.  Rep.  319;    Phil.    (N.   C.)    Eq.  8;    Clark    v. 

515,   1   L.  R.  A.    (N.  S.)    397,   123   P.  Mosely,  1  Rich.  Eq.  396,  44  Am.  Dec. 

476,  21  Idaho,  555;   78  A.  393,  78  N.  229;  Houghton  v.  Hughes,  79  A.  909, 

J.   Eq.   1;   Maxcy  v.  Oshkosh.   128  N.  108  Me.  233   (laws  of  one's  country)  ; 

W.  899,  144  Wis.  238;  Herring  V.  Wil-  Lincoln     v.     Perry,     149     Mass.     368 

Dams,  69   S.   E.   140,   153  N.   C.   231;  ("licir   at   law"). 
Heisen  v.  Ellis,  93  N.  E.  362,  247  111. 

500 


CHAP.  I.]  GENERAL   RULES    OF    CONSTRUCTION.  §    470 

settled  legal  meaning  unless  the  contrary  is  manifest.®  And  if  a 
testator  has  used  technical  language  which  brings  his  case  within 
some  precise  rule  of  law,  that  rule  must  take  effect  But  technical 
words  are  liable  to  other  explanatory  and  qualifying  expressions 
in  the  context  which  disclose  the  testator's  actual  intention ;  ^  and 
where  a  different  meaning  is  fairly  deducible  from  the  whole  will, 
the  technical  sense  must  yield  to  the  apparent  intention.^  In  short, 
the  testator's  intention  as  gathered  from  the  will  shall  prevail 
against  the  technical  meaning  of  words  or  phrases,  so  far  as  may 
consist,  at  least,  with  the  rules  of  sound  policy,  and  however  im- 
perfectly such  intention  was  in  a  technical  sense  expressed.^ 

To  illustrate  these  distinctions.  When  a  trust  is  created,  the 
legal  effect  of  which  is  declared  by  the  law,  the  court  is  bound  to 
presume  that  the  intent  of  the  testator  was  in  conformity  to  that 
law.*  And  specific  words,  especially  in  real  estate  titles,  acquire 
readily  the  technical  effect  which  usage  and  the  decisions  sanction.^ 
Yet  the  word  ^'  effects  "  has  been  held  to  embrace  both  real  and 
personal  property  under  a  will  and  to  carry  a  fee  simple  in  lands, 
without  other  words  of  inheritance,  where  the  will  shows  on  the 
whole  that  such  was  the  testator's  meaning.®  From  a  similar  con- 
sideration, the  words,  "  residuary  legatee  "  have  been  held  to  carry 

9.   Doug.    340;    4   Ves.   329;    6   Ch.  son,  336,  per  Story,  J.;  S  Wms.  Exrs. 

D.  496;  Needham  v.  Ide,  5  Pick.  510;  1079;   Suydam  v.  Thayer,  94  Mo.  49, 

De  Kay  v.  Irving,  5  Denio,  646 ;  Felt-  6  S.  W.   502. 

man  v.  Butts,  8  Bush.   115 ;   Jackson  "  Unmarried  "   may    thus    be    con- 

V.  Kip,  2  Paige,  366;   2  Jarm.  Wills,  strued    to    mean    "not   under   cover- 

842.       Certain    forms     of    expression  ture  "  at  the  time  referred  to.     W.  N. 

however,  which  have  become  rules  of  (1890)    125. 

property  and  especially  of  land,  may  3.  See  Karsten  v.  Karsten,  98  N.  E. 

affect  this  rule  of  intent.    Mulliken  v.  947,   254   111.   480;     Hyde   v.   Rainey, 

Earnshaw,  58  A.  286,  209  Penn.  226.  82  A.  781,  233  Penn.  540   (the    word 

See  Mueller  v.  Buenger,  83  S.  W.  458,  "  lease  "). 

184  Mo.   458,   105  Am.   St.  Rep.   541,  4.  Pennoyer    v.    Shelden,  4  Blatch. 

67  L.  R.  A.  648;    §§  462,  463.  319. 

1.  Picquet  v.  Swan,  4  Mason,  443;  5.    8   Mass.   3,    5   Am.   Dec.    66;     5 
Robertson  v.   Johnston,   24   Ga.    102;  Pick.   510;   47  Barb.  263. 

Daniel   v.   Whartenby,   17   Wall.   639,  6.   Hogan   v.   Jackson,   Cowp.    299; 

21  L.  Ed.   661.  Ferguson  v.  Zepp,  4  Wash.  645. 

2.  Nightingale   v.    Sheldon,    5    Ma- 

591 


§    471  LAW   OF   WILLS.  [pART  VL 

real  estate ;'  the  word  "  heir  "  has  been  construed  to  mean  child  f 
*'  legatee  "  has  from  the  context  been  read  as  "  devisee  " ;  ^  and 
■intent  has  controlled  as  to  making  "  bequest "  and  "  devise " 
synonymous.^ 

In  determining  whether  a  word  is  used  in  a  will  in  a  technical 
or  more  general  sense,  it  should  be  considered  what  will  best  carry 
into  effect  the  testator's  intention ;  ^  but  as  a  rule  language  should 
be  construed  accordingly  to  its  primary  and  ordinary  meaning, 
unless  the  testator  has  manifested  his  intention  in  the  will  to  give 
it  a  different  significance.^ 

§  471.  Technical  Words  not  Necessary;  Words  occurring  more 
than  once. 

Technical  words  are  not  requisite  to  give  effect  to  any  species 
of  disposition  in  a  will ;  *  but  the  intention  of  the  testator  as  dis- 
cerned in  the  will  is  to  govern  in  its  construction,  if  consistent  with 
the  rules  of  law,  though  no  technical  words  be  used  at  all.^ 

For  convenience  in  laying  hold  of  the  testator's  true  meaning, 
it  has  been  ruled  that  words  occurring  more  than  once  in  a  will 
shall  be  presumed  to  be  used  always  in  the  same  sense,  unless  the 
context  shows  a  contrary  intention.^  But  the  presumption  thus 
afforded  appears  usually  a  slight  one  as  against  the  apparent  in- 
tention, which  after  all  is  the  criterion,  in  studying  text  and  con- 
text under  such  circumstances. 

§  472.  Words  to  be  taken  in  Usual  Sense;  Punctuation,  etc. 

Words  in  general,  whether  technical  or  popular,  are  to  be  taken 

7.  Burwell  v.  Mandeville,  2  How.  4.  3  T.  R.  86;  11  East,  246;  2 
560,  11  L.  Ed.  378.  Jarm.  Wills,  840. 

8.  Bland  v.  Bland,  103  111.   11.  5.    Richardson    v.    Noyes,    2    Mass. 

9.  Weeks  v.  Cornwell,  106  N.  Y.  56;  Smith  v.  Bell,  6  Pet.  68;  and  nu- 
626,  13  N.  E.  96.  merous   other  cases  cited,  U.   S.  Dig. 

1.  Tliompson  v.  Gaut,   14  Lea,  310.  1st  series,  Wills,   1524. 

2.  15  N.  J.  L.  276.  6.  See   1  Jarm.  Wills.   842;    (1900) 

3.  Hone  v.  Van  Schaick,  3  N.  Y.  1  Ch.  417;  2  Ch.  Cas.  169;  3  Drew, 
.138;  1  Johns.  Ch.  220;  10  S.  &  R.  472;  Mcintosh's  Estate,  158  Penn. 
150.  St.   528,  27  A.  1044;    Wood  v.  Wood, 

63  Conn.  324,  A.  520;    135  N.  W.  3. 

592 


CHAP.  I.]  GENERAL   RULES    OF   CONSTRUCTION.  §    473 

in  their  plain  and  usual  sense,  unless  a  clear  intention  to  use  them 
in  another  sense  can  be  collected  and  that  sense  ascertained  besides.'' 
And  where  an  intelligent  layman  draws  up  his  own  will,  words 
used  by  him  which  have  an  intelligible  conventional  meaning  will 
not  be  presumed  to  mean  something  different.^  Punctuation,  how- 
ever, is  of  no  great  significance,  nor  even  syntax.' 

§  473.  Courts  give  Effect  if  Possible  to  All  Parts  of  a  Will. 

A  court  is  bound  to  give  effect  to  every  part  of  a  will,  without 
change  or  rejection,  provided  an  effect  can  be  given  to  it,  not 
inconsistent  with  the  general  effect  of  the  whole  will  taken  to- 
gether.^ And  where  effect  cannot,  consistently  with  the  rules  of 
law,  be  given  to  an  entire  will,  or  to  an  entire  provision  therein, 
any  part  of  it  which  conforms  to  such  rules  will  be  sustained,  if 
it  can  be  separated  from  the  rest  of  the  will  without  violating  the 
testator's  general  intention.  Thus,  if  the  testator  expresses  a 
general  primary  intention  which  conforms  to  the  law,  ulterior 
limitations  by  which  he  seeks  to  establish  a  perpetuity  may  be 

7.  18  Ves.  466;  4  C.  B.  N.  S.  790;  And  see  80  A.  86,  84  Conn.  391;  95 
2  Jarm.  Wills,  841;  2  Dem.  (N.  Y.)  N.  E.  788,  209  Mass.  350;  Houghton 
534;  Barney  v.  Arnolds,  15  R.  I.  78,  v.  Brantingham,  86  A.  664,  86  Conn. 
23  A.  45.  630    (translated    words    in    a    French 

8.  Hamilton  v.   Ritchie    (1894),  A.  will). 

C    310;    66  N.  H.  434,  31  A.  900;    99  9.  43   S.  C.  S78,  65   S.   C.   390;     87 

Cal.  30,  33  P.  751;   189  N.  Y.  202,  82  N.  Y.  S.  325;  §  477,  post. 
N.  E.  181;   Jacobs  v.  Prescott,  65  A.  1.  Dawes  v.  Swan,  4  Mass.  208;   6 

761,    102    Me.    63    (words    popular    in  Mass.    169,   4   Am.   Dec.    107;    Dill   v. 

their   popular   or   grammatical   sense.  Dill,  1  Desaus.  237;   Mutter's  Estate, 

and   words   technical   in   their  techni-  38  Penn.  St.  314;  Lawrence  v.  Smith, 

cal  sense);    Ironside  v.  Ironside,   130  163  111.  149,  45  N.  E.  259;  Dalton  v. 

N.  W.  414,  150  Iowa,  628;  62  A.  814,  Scales,  2  Ired.  Eq.  521;   108  Penn  St. 

102    Md.    649;    Allison   v.    Allison,   44  314,   56  Am.  Rep.  208;    136  Mo.   244, 

S.  E.  904,  101  Va.  537;  45  S.  E.  324;  37  S.  W.  909;   80  N.  E.  998,  22R   111. 

McAllister   v.    Hayes.    79   A.    726,    76  438;   72  N.  E.  751,  213  111.  124;  Hall 

N.  H.   108.    Ordinary   rules  of  gram-  v.  Hall,  95  N.  E.  188,  209  Mass.  350; 

mar  are  favored.      66  N.  E.  795,  183  137  N.  Y.  S.  578;  Honaker  v.  Starks, 

JNIass.  212.  Words  are  sometimes  used  75   S.   E.   741,   114  Va.   37;    Smith  v. 

with    a    special    meaning.     Weeks     v.  Piper,  80  A.  877,  231  Penn.  378;   69 

Mansfield,   80   A.    784,   84   Conn.   544.  S.  E.  140,  153  N.   C.  231. 
38                                      593 


§    474  LAW    OF    WILLS.  [pART  VI. 

dropped,  as  not  affecting  the  validity  of  the  primary  disposition 
of  his  estate.^  Invalid  ulterior  limitations  will  not  invalidate  the 
primary  dispositions  of  a  will.^  And  where  a  testator's  intention 
cannot  wholly  operate,  it  must  be  allowed  to  operate  as  far  as 
possible/  The  intention  of  the  testator  being  once  ascertained, 
that  intention  will  be  carried  out  faithfully  unless  it  counteracts 
public  policy  or  some  established  rule  of  law.^ 

§  474.  Later  Clause,  how  construed  With  an  Earlier  One. 

A  later  clause  in  a  will  must  be  deemed  to  affirm,  not  to  contra- 
dict an  earlier  clause,  if  such  construction  can  fairly  be  given. 
The  effort  here,  and  a  natural  one,  is  to  reconcile  the  instrument 
in  all  its  parts  and  make  the  disposition  a  consistent  whole;  for 
in  construing  doubtful  language  that  interpretation  should  be  pre- 
ferred which  gives  consistency  to  the  whole  will,  rather  than  one 
which  works  inconsistency.  Ambiguous  expressions,  therefore, 
though  capable  of  limiting  a  plain  gift  already  made,  will  not  be 
readily  allowed  this  effect.^  And  on  the  other  hand,  an  express 
limitation  in  a  bequest  or  devise  should  not  be  controlled  by  impli- 
cation drawn  from  other  provisions  in  the  will,  if  the  latter  by 
any  fair  intendment  can  be  reconciled  with  the  former."  In  short, 
a  will  is  not  to  be  read  so  as  to  contradict  itself,  if  its  apparent 
contradictions  can  be  reconciled  by  bringing  the  various  clauses 
together,  and  deducing  a  consistent  interpretation  from  the  whole 
context.* 

But  the  mere  position  of  particular  sentences  or  clauses  is  by 
no  means  conclusive  as  against  the  real  sense  of  the  whole  will ; 

2.  Oxley  v.  Lane,  35  N.  Y.  340.  6.  Temple  v.  Sammis,  97  N.  Y.  526. 

3.  Tiers  v.  Tiers,  98  N.  Y.  568.  7.  Ward  v.  Amory,   1  Curt.  419. 

4.  Finch,  139;  2  Jarm.  Wills,  843;  8.  White  v.  Allen,  81  Ind.  224; 
Lepage  v.  McNamara,  5  Iowa,  124.  Lucas  v.  Duffield,  6  Gratt.  456 ;   10  La. 

5.  See  Hadley  v.  Hadley,  100  Tenn.  Ann.  164;  Norton  v.  Woodbury,  153 
446,  45  S.  W.  342;  GafTield  v.  Plum-  N.  Y.  243,  47  N.  E.  283;  Cornet  v. 
ber,  175  111.  521;  Reilly  v.  Infirmary,  Cornet,  154  S.  W.  121,  248  Mo.  184; 
87  Md.  664,  40  A.  894;    168  111.  273;  141    N.    W.    60. 

Mulvane  v.  Rude,  146  Ind.  625,  45  N. 
E.    1060;    §    466,    supra. 

594 


CHAP.  I,]  GENEKAL   RULES    OF    CONSTRUCTION.  §    476 

while  at  the  same  time  position  is  a  circumstance  of  weight  where 
some  general  expression  of  the  will  yields,  as  it  should,  to  a  clear 
and  specific  provision  found  elsewhere." 

§  474a.  Same  Words  in  a  Clause  applied  to  Different  Subjects 
or  Objects. 

It  will  not  be  presumed,  in  the  absence  of  any  showing  to  the 
contrary,  that  a  testator  intended  the  same  words  in  a  particular 
clause  of  the  will,  to  have  a  paticular  effect  with  respect  to  one 
subject  or  object,  or  to  one  class,  and  a  different  etlect  as  to  another 
subject  or  object  or  another  class.^ 

§  475.  General  Description,  whether  limited  by  Particulars. 

A  similar  rule  is  that,  where  the  whole  will  indicates  nothing 
to  the  contrary,  a  gift  by  words  of  general  description  is  not  to 
be  limited  by  a  subsequent  attempt  at  a  particular  description.^ 
But  this  presumption  is  overcome  by  an  expression  of  intent  to 
the  contrary,  as  gathered  from  the  whole  instrument.^ 

§  476.  Regard  paid  to  the  Predominant  Idea  of  the  Will. 

In  construing  a  will,  the  predominant  idea  of  the  testator's 
mind,  if  apparent,  is  heeded,  as  against  all  doubtful  and  conflicting 
provisions  which  might  of  themselves  defeat  it.  The  general 
intent  and  particular  intent  being  inconsistent,  the  latter  must  be 
sacrificed  to  the  former.     If,  for  instance,  the  primary  object  of 

9,  A  general  residuary  clause  may  favored     at     this     day.     Morrison    v. 

be  made  to  yield  to  a  specific  incon-  Truby,  145  Penn.  St.  540,  22  A.  972; 

sistent    provision,    especially     if     the  Heilman  v.  Heilman,  129  Ind.  59,  28 

latter  be  subsequent  in  recital.    Mar-  N    E.  310;   51  A.  1056,  94  Md.  773; 

kle's  Estate,  187  Penn.  St.  639,  41  A.  60  A.  789,  311  Penn.  397;   Brown  v. 

304.    And  see  181   Penn.   St.   349,   37  Tuschoff,  138  S.  W.  497,  335  Mo.  449. 

A.  516;   49  N.  J.  Eq.  98,  23  A.  125;  2.  Martin  v.  Smith,  124  Mass.  Ill; 

73  S.  W.  262,  173  Mo.  572;  102  N.  E.  Freeman  v.  Coit,  96  N.  Y.  63;  next  c. 

173,  259  111.   194.  3.    Urich's    Appeal,     86     Penn.     St. 

1.   EA^en   with   regard   to   both   per-  386,   27   Am.   Rep.   504;    Andrews    v. 

sonal     and     real     property    embraced  Schoppe,    84    Me.    170,     24     A.     805; 

under   the  clause  of  disposition,    the  Allen  v.  White,  97  Mass.  504. 
same  general  effect  of  construction  is 

595 


§    477  LAW    OF    WILLS.  [PART  VI. 

a  son's  will  was  to  provided  for  his  mother  through  the  interposition 
of  executors  and  trustees,  the  death  of  these  latter  will  not  cause 
that  provision  to  fail.*  All  such  subordinate  provisions  bend  in 
construction  to  the  testator's  main  purpose  and  should,  if  possible, 
help  carry  it  out,  not  obstruct  it;  and  undue  stress  should  not  be 
laid  upon  particular  expressions  or  detached  clauses.'* 

§  477.  Courts  will  change  or  mould  Language,  etc.,  so  as  to 
give  Intention  Effect. 
Indeed,  courts  have  gone  so  far  in  aiding  the  intention  of  a 
testator  as  even  to  change  or  mould  the  language  of  a  will  in  con- 
struction, so  as  to  carry  out  what  it  appears  from  reading  the  whole 
will  that  the  testator  actually  intended.®  They  have  discarded 
words  as  surplusage  which  were  senseless  as  they  stood  expressed  in 
the  instrument.^  They  have  rejected  or  modified  expressions  in 
the  will  which  were  inconsistent  with  the  main  intention,  or  which 
indicated  an  intention  which  the  law  would  not  permit  to  take 
effect.^  They  have  transposed  words  so  as  to  bring  out  the  natural 
sense  and  the  testator's  obvious  meaning.^  They  have  supplied 
words  with  the  same  object  in  view.^    They  have  dealt  lightly  with 

4.  3  Dem.   307.  Wright  v.  Denn,  10  Wheat.  204,  6  L. 

5.  Stimson    v.    Vroman,    99    N.    Y.      Ed.  303. 

74,  1  N.  E.  147;  152  Fed.  775;  Powell  8.  See  Mellor  v.  Daintree,  33  Ch.  D. 

V.  Beebe,  133  N.  W.  8,  167  Mich.  306;  198,  206. 

84  A.  765,  236  Penn.  235;   Hitchcock  9.   2   Ch.   Ca.   10;    Hob.   75;    2  Ves. 

V.  Hitchcock,  35  Penn.  St.  393;  Work-  32;   1  B.  &  Aid.  137;   Ferry's  Appeal, 

man  v.  Cannon,  5  Harr.  91;  Thrasher  102  Penn.  St.  207;  Hornby,  Ex  parte, 

V.  Ingram,  32  Ala.  654;   Rose  v.  Mc-  2   Bradf.   420;    Linstead   v.   Green,   2 

Hose,    26   Mo.    590.     Cf.   Pickering   v.  Md.  82;   Baker  v.  Pender,  5  Jones  L. 

Langdon,    22    Me.    413.     See    Lyon   v.  351;  Christie  v.  Phyfe,  19  N.  Y.  344; 

Safe  Deposit  Co.,  87  A.  1089,  120  Md.  O'Neall  v.  Boozer,  4  Rich.  Eq.  22;    1 

574    (relation   of   introductory   to   re-  Jarm.  Wills,  500;  143  N.  W.  1050,  155 

eiduary  clause).  Wis.  46. 

6.  1  Jarm.  Wills,  499,  503;  2  lb.  1.  Cloland  v.  Waters,  16  Ga.  496; 
842;  Cox  v.  Britt,  22  Ark.  567;  Met-  Dew  v.  Barnes,  1  Jones  Eq.  149;  Au- 
calf  V.  Framingham  Parish,  128  lick  v.  Wallace,  12  Bush.  531;  Heller- 
Mass.  370.  man's   Appeal,   115    Penn.    St.    120,   8 

7.  2  Vos.  277;  1  Jarm.  Wills,  479;  A.  768;  Mellor  v.  Daintree,  33  Ch.  D. 
12    East,     515;      1     B.    &    Aid.    137;       198;     1    Jarm.    Wills,    486;    7    T.    R. 

596 


CHAP.  I.] 


GENEKAL   RULES    OF    CONSTEUCTION. 


477 


errors  of  syntax  and  punctuation,  especially  where  the  testator  did 
not  write  out  his  own  will.^  They  have  constantly  read  "  and  "  as 
though  it  were  "  or,"  and  vice  versa/  and  in  various  other  instances 
given  words  and  expressions  a  meaning  quite  different  from  their 
literal  acceptation.  They  have  even  gone  so  far  as  to  change  words 
which  evidently  were  miswritten,  so  as  to  give  a  meaning  precisely 
opposite  to  what  the  will  expressed  on  its  face;  as  in  reading 
"  dying  without  issue  "  as  though  it  were  "  dying  with  issue,"  ^  or 
"  donee  "  as  though  it  were  "  donor,"  ^  or  "  if  "  as  meaning 
"  when."  « 

In  all  such  instances,  however,  the  avowed  object  of  the  inter- 
preting court  has  been  to  dispel  the  effect  of  some  careless,  in- 
accurate, or  ignorant  use  of  language  on  the  part  of  the  testator  or 
his  scrivener,  and  make  the  will  interpret  what  he  obviously 
meant,  just  as  though  his  ideas  had  been  clearly  and  correctly 


437;  6  East,  486;  7  Gill  and  J.  327; 
166  111.  318,  46  N.  E.  1113;  7  Houst. 
488.  In  an  early  case  the  words 
"  without  issue  "  were  supplied  where 
one  devised  to  A  and  his  heirs,  and 
if  he  died,  then  over.  1  And.  33.  But 
w^ords  are  not  to  be  substituted  arbi- 
trarily. May  V.  Sherrard,  115  Va. 
617;  Bennett  v.  Bennett,  136  S.  W. 
878,  143  Ky.  380.    And  see  post,  c.  3. 

2.  87  Penn.  St.  51;  19  S.  C.  297, 
45  Am.  Rep.  777;  151  N.  Y.  269,  45 
N.  E.  869;  Turner's  Will,  101  N.  E. 
905,  208  N.  Y.  261;  131  N.  Y.  S.  525 
(comma  treated  as  semi-colon)  ;  48 
La.  Ann.  1038. 

3.  Doe  V.  Watson,  8  How.  263;  1 
Jarm.  Wills,  505,  517,  and  cases  cited. 

4.  8  Mod.  59;  2D.  M.  &  G.  300;  2 
Jarm.  Wills,  843.  In  various  in- 
stances where  the  testator  uses  the 
phrase  "  without  issue,"  the  court  has 
read  "  without  leaving  issue."  1 
Jarm.  Wills,  487;  Amb.  112;  13  Ves. 
476;    1   Harr.   &   G.   111.      For  other 


changes,  see  1  Jarm.  Wills,  503-524, 
and  notes.  "  Between "  may  thus  be 
read  as  though  written  "  among." 
Hick's  Estate,  134  Penn.  St.  507,  9  A. 
705.  "  Tlien  "  is  construed  favorably 
to  intent  in  Perkins's  Appeal,  108 
Penn.  St.  314,  56  Am.  Rep.  208. 
"  Child  "  may  be  read  "  children." 
56  N.  J.  Eq.  507. 

5.  White  V.  Institute  of  Technol- 
ogy, 171  Mass.  84,  50  N.  E.  512.  And 
see  Home  v.  Noble,  172  U.  S.  383, 
43  L.  Ed.  486;  Eidt  v.  Eidt,  96  N.  E. 
729,  203  N.  Y.  325;  108  Me.  417;  64 
A.  461.  71  N.  J.  Eq.  327;  73  N.  E. 
556,  187  Mass.  480;  137  N.  Y.  S. 
847;  Neal  v.  Hamilton  Co.  73  S.  E. 
971,  70  W.  Va.  250;  134  S.  W.  906, 
142  Ky.  472;  Keuhle  v.  Zimmer.  94 
•N.  E.  957,  249  111.  544  (as  to  para- 
graphing). 

6.  82  A.  781,  233  Penn.  540. 
See  135  P  682,  90  Kan.  545  ("de- 
scend "  as  "  go  to.") 


597 


§    477  LAW    or    WILLS.  [part  VI. 

expressed  in  the  instrument.  But  •changes  like  these  will  not  be 
made  upon  any  mere  conjecture,  however  reasonable,  of  what  the 
testator  meant,  in  opposition  to  the  plain  sense  of  the  instrument 
as  it  stands.^  All  other  things  being  equal,  the  natural  and  literal 
import  of  words  and  phrases  is  presumed  to  have  been  intended ;  ^ 
and  each  word  is  to  have  its  effect,  if  the  general  intent  be  not 
thwarted  thereby.^  l^o  words  of  a  will  are  to  be  rejected  if  any- 
intelligent  meaning  can  be  given  them.^ 

Xor  will  language  be  distorted  or  meddled  with,  whose  meaning 
is  clear,  for  the  sake  of  correcting  that  which  extrinsic  proof  might 
show  to  have  been  a  mistake  of  fact  on  the  testator's  part ;  nor 
words  supplied  which  it  is  not  evident  that  the  testator  intended 
to  use.^  To  change  or  supply  words  for  the  sake  of  creating  an 
intent  or  of  making  the  will  different  from  what  the  testator  by 
the  will's  own  language  meant  it  to  be  is  certainly  inadmissible; 
but  the  moulding  or  altering  must  be  in  furtherance  of  the  purpose 
expressed  or  indicated  in  the  context.^  A  devise  or  bequest  under 
the  will,  as  stated,  is  not  to  be  distorted  into  something  greater  or 
different  upon  any  suggestion  that  partial  intestacy  must  otherwise 
result;  neither  can  a  court  create  by  construction  a  new  and  valid 
will  for  a  testator  nor  render  valid  his  invalid  disposition.* 

7.  2  Jarm.  Wills,  843;  18  Ves.  368;  tended,  this  mistake  will  not  defeat 
2  Mer.  25;  1  Brev.  414;  Simpson  v.  the  bequest,  but  the  court  will  read 
Smith,  1  Sneed,  394;  Caldwell  v.  Wil-  the  name  as  it  ought  to  stand.  Hill 
lis,  57  Miss.   555.  v.   Downes,   125   Mass.   509;    Caldwell 

8.  2  Dem.  (N.  Y.)  534;  5  J.  J.  v  Willis,  57  Miss.  555;  Eastwood  v. 
Marsh.  600;   3  La.  Ann.  168.  Lockwood,   L.  R.   3  Eq.   487.    For  er- 

9.  8  Port.    (Ala.)    380.  roneous  recital  in  a  will  construed  aa 

1.  Seibert  v.  Wise,  70  Penn.  St.  truly  intended,  see  Bagot  Re,  (1893) 
147.  3  Ch.  348.  And  see  60  A.  682,  73  N.  H. 

2.  6  Munf.  114;  Listen  v.  Jenkins,  237;  50  S.  E.  41,  122  Ga.  183;  Dee  v. 
2  W.  Va.  62;  73  Miss.  188,  18  So.  Dee,  72  N.  E.  429,  212  111.  338  (General 
393,  55  Am.  St.  Rep.  527.  provision  gives  way  to  specific  one)  : 

3.  37  N.  J.  Eq.  5.  As  to  legacies'  73  N.  E.  672,  187  Mass.  562;  80  A. 
see  (Vol.  IL)  E.xrs.  &  Adms.  §§  1458-  133,  31  R.  I.  39,  127  N.  Y.  S. 
1475.  It  is  a  familiar  rule  that  where  680;  Kahn  v.  Tierney,  94  N.  E. 
tlio  name  of  a  legatee  is  erroneously  1095,  201  K.  Y.  516  (where  word  is 
slated  in  a  will,  and  there  is  no  rea-  used  incorrectly). 

sonable    doubt   as    to   the    person    in-  4.    Oldham   v.    York,   99   Tenn.    68, 

598 


CHAP.  I.]  GENERAL    RULES    OF    CONSTRUCTION.  §    478 

§  478.  Treatment  of  Repugnant  Parts. 

But  while  varying  and  contiicting  clauses  should,  if  possible,  be 
reconciled  so  as  to  make  each  clause  operative,  it  has  often  been 
ruled  that  in  case  of  invincible  repugnancy,  the  latter  clause  ought 
to  prevail  over  the  former.''  This  doctrine  appears  to  be  deduced 
from  the  principle,  fair  enough  in  the  comparison  of  expressions 
of  different  date,  that  the  testator's  latest  expression  should  be 
preferred  to  all  previous  ones;  a  principle,  however, "which  must 
be  somewhat  strained  when  applied  to  the  various  consecutive 
parts  of  what  has  been  obviously  shaped  out  to  stand  as  the  one 
full  and  contemporaneous  expression.  Such  a  rule,  therefore,  as 
here  applied,  is  properly  a  last  and  limited  resort,  and  when  all 
efforts  at  reconcilement  fail ;  for  the  intention  of  the  testator  is  to 
be  gathered  from  a  consideration  of  the  whole  contemporaneous 
wall  and  a  comparison  of  the  different  terms,  and  effect  given 
to  this  intention  throughout  if  it  can  be  fairly  and  legally  done ; 
and  one's  general  or  predominant  intention,  if  discoverable, 
must  prevail  over  a  particular  or  subsidiary  one.^  The  repug- 
nancy Avhich  will  justify  the  rejection  of  a  word  or  clause  from  a 
will  must  arise  upon  the  face  of  the  will.^     It  is  only  when  the 

41  S.  W.  333;  Walkerly's  Estate,  108  233  Penn.  540;  Spreckles'  Estate,  123 
Cal.  627,  41  P.  772,  49  Am.  St.  Rep.  P.  371  162  Cal.  559;  78  A.  320,  83 
97;   48  La.  Ann.  1036.  Conn.  654;   136  N.  W.  1001,  94  Neb, 

5.    1  Jarm.  Wills,  472;   L.  R.   6   C.  654;    145   S.  W.  1135,  148  Ky.  43. 
P.    500;    6  Ves.   100;    Crone  v.   Odell,  6.   3   Ves.  Jr.    103;    Constantine    v. 

3  Dow,  61;  Homer  v.  Shelton,  2  Met.  Constantine,    6   Ves.    100;    Homer    v. 

202;     Thrasher    v.     Ingram,    32   Ala.  Shelton,   2   Met.   202;    Covenhoven   v. 

645;    31   Hun,   119;    Pratt  v.   Rice,   7  Shuler,  2  Paige,  122,  21  Am.  Dec.  73; 

Cush.  209;   Smith  v.   Bell,  6  Pet.  84,  Hunt   v.    Johnson,    10    B.    Mon.    342; 

8  L.  Ed.  328;  3  Whart.  162;   Sherrat  11     Gill     &     J.     185,     35     Am.     Dec. 

V.   Bentley,  2  M.  &  K.   149;     Orr    v.  277;       Robert      v.      West.      15       Ga. 

Moses,    52   Me.    287;    Evans   v.   Hud-  122;     Walker    v.     Walker,     17     Ala. 

son,  6  Ind.  293;   74  Me.  413;  Heidel-  396;    Pickering   v.    Langdon,    22    Me. 

baugh   V.   Wagner,   72   Iowa,    601,   36  430;    Van  Veehten   v.   Keator,   63   N". 

N.    W.    439;    Hendershot    v.    Shields,  Y.   52;    65   Penn.   St.   388;    Baxter  v. 

42  N.  J.  Eq.  317,  8  A.  86;  Adams  v,  Bo\\^er,  19  Ohio  St.  490;   §  476. 
M'assey,  76  N.  E.  916,  184  N.  Y.  62;  7.  See  20  Ohio  St.  490. 

64  N.  E.  545,  197  111.  554;  82  A.  781, 

599 


§    478  LAW   OF   WILLS.  [pART  VI. 

context  itself  is  a  source  of  obscurity  that  courts,  rather  than  be 
driven  to  suffer  the  will  to  fail,  accord  this  favor  to  an  expression 
locally  posterior  in  the  instrument,  each  expression  being  suffi- 
ciently intelligible  when  taken  by  itself,  and  sacrifice  the  prior 
clause  accordingly.*  The  effect,  though  usually  to  limit  or 
qualify  a  former  gift,  may  be  to  destroy  it  altogether. 

If  any  word  or  expression  has  no  intelligible  meaning,  or  is 
absurd,  or  repugnant  to  the  clear  intent  shown  in  the  rest  of  the 
will,  it  may  be  rejected.^  ^or  is  a  clear  gift  or  devise  in  one  part 
of  the  will  to  be  cut  down  or  out  by  indefinite,  doubtful  or  ambig- 
uous expressions  in  another  part  or  upon  any  conjecture;  but  the 
intention  to  cut  down  or  out,  or  the  inconsistent  provision,  must  be 
indicated  with  at  least  reasonable  certainty,  and  by  the  use  of 
language  sufficiently  imperative.^  In  various  instances  inconsist- 
ent gifts  or  devises  have  been  reconciled  in  construction,  by  reading 
the  later  one  as  referring  to  a  possible  lapse  of  the  former  one  or  as 
dependent  upon  some  contingency  which  is  deducible  from  the 
instrument  taken  as  a  whole.^  And  after  some  dispute  the  English 
cases  sustain  the  theory,  that  where  two  devises  in  fee  are  given  of 
the  same  property,  a  sacrifice  of  the  former  may  be  avoided  by 

8.  1  Jarm.  Wills,  472-485.  This  291;  Yost  v.  McKee,  176  Penn.  St. 
rule,  though  artificial,  is  of  ancient  381,  53  Am.  St.  Rep.  674,  35  A.  140; 
standing.  "Cum  duo  inter  se  pugnan-  153  N.  Y.  134,  47  N.  E.  274;  98 
tia  reperiuntur  in  testamento,  ulti-  Tenn.  190,  39  S.  W.  12;  116  Mich, 
mum   ratum  est."    Co.  Lit.   112  6.  180,   74   N.   W.   472;    Pitts   v.   Camp- 

9.  12  Mass.  537,  7  Am.  Dec.  99;  bell,  55  So.  500,  173  Ala.  604;  137  N. 
1  Jarm.  Wills,  480;  Needham  v.  Ide,  Y.  S.  319;  Boulevard  Re,  79  A.  716, 
5  Pick.  510;  2  Desaus.  32;  Holmes  v.  230  Penn.   49. 

Cradock,     3    Ves.    Jr.   521;    Davis   v.  A  positive  intent  to  cut  down  may 

Boggs,  20  Ohio  St.  550.  be  manifest  and  hence  effectual.     116 

1.    1   Jarm.    Wills,    479;     Price    v.  Mich.    180,    74    N.    W.    472;    107    111. 

Cole,    83    Va.    343;    Meyer   v.    Cahen,  443;   Pope  v.  Pope,  95  N.  E.  864,  209 

111  N.  Y.  270,   18  N.  E.  852;   Hoch-  Mass.    432;   Hoopes's    Estate,    80    A. 

stedler  v.  Hochstedler,  108   Tnd.  506;  537,   231   Penn.   232.    And   see   84    A. 

119    Ind.    525,    12   Am.    St.    Rep.    436,  765,  230  Penn.  235;    68  S.  E.  966.  87 

22  N.   E.   4;    Ilsley  v.   Tlsley.   80   Me.  S.  C.   55;   93  N.  E.  330,  247  111.  586; 

23;   12  A.  796;  Wilmoth  v.  Wilmoth,  98  Tenn.  190. 

34  W.  Va.  426,  12  S.  E.  731;   Banzer  2.  5  B.  &  Aid.  536;   Ley  v.  Ley,  Z 

V.   Banzer,   156  N.   Y.   429,   51   N.   E.  M.  &  Gr.  780.    And  see  5  Ex.  107. 

GOO 


CHAP.  I.]       GENERAL  RULES  OF  CONSTRUCTION.  §  479 

considering  that  the  devisees  take  concurrently ;  ^  and  that  of  a 
chattel  not  utterly  indivisible,  the  legatees  inconsistently  men- 
tioned shall  each  have  a  moiety.*  Where  a  will  can  be  construed 
as  consistent  with  itself,  the  disastrous  effect  of  repugnancy  is 
avoided.""  A  clear  gift  or  devise  is  not  to  be  controlled  by  the 
reasons  assigned  for  making  it ;  nor  by  any  inaccurate  words  of 
reference  or  recital  which  may  subsequently  occur  in  the  will,  nor 
by  mere  inference  and  argument  in  general.® 

A  court,  moreover,  should  disincline  to  base  the  rejection  of  a 
clause  for  repugnancy  upon  another  clause  which  would  thereby 
be  rendered  void.^ 

§  479.  Favor  to  Heir  or  Next  of  Kin,  considered. 

Against  the  fundamental  maxim  that  the  intention  of  the  tes- 
tator shall  prevail  comes  in  conflict  another  primary  one,  namely, 
that  the  heir-at-law  shall  not  be  disinherited  by  conjecture,  but  only 
by  express  words  or  necessary  implication.*  This  latter  rule  of 
presumption  has  been  long  asserted  by  the  courts  in  England  and 
America ;  ^  but  the  policy  of  modern  times  extends  such  a  pre- 
sumption rather  in  favor  of  heirs  and  next  of  kin,  generally, — that 
is  to  say,  to  any  one  or  all  closely  related  who  would,  independ- 

3.  Sherrat  v.  Bentley,  2  M.  &  K.  plaint."  Grier,  J.,  in  Smith  v.  Shri- 
165.  ver,    3    Wall.   Jr.    219.       The   English 

4.  lb.  courts   have   asserted   this   rule    very 

5.  Stebbins  v.  Stebbins,  86  Mich.  strongly  in  times  past.  "  There  is 
474,  49  N.  W.  294.  hardly   any   case,"   says    Lord    Hard- 

6.  1  Jarm.  Wills,  483-485;  2  lb.  wicke,  "where  implication  is  of  ne- 
841;  Cole  V.  Wade,  16  Ves.  27;  cessity;  but  it  is  called  necessary  be- 
Cowp.  833 ;  8  Ves.  42 ;  Terry  v.  Smith,  cause  the  court  finds  it  so  hard  to  an- 
42  N.  J.  Eq.  504,  8  A.  886;  (1896)  swer  the  intention  of  the  devisor." 
2   Ch.   353.  Coryton   v.   Helyar,   2   Cox,   340,   348. 

7.  Greenwood    v.    Greenwood,     178  And  see  Jarman's  rule  V.  post. 

Ill-  387.  9.  2  Stra.  969;  5  T.  R.  558;  18  Ves. 

8.  "  That  the  application  of  the  lat-  40;    1   Jarm.   Wills,   532;    1   lb.   841; 
ter  rule  has  had  the  effect  of  defeat-  Howard   v.   American  &c.   Society,  49 
ing  the   intention   of  the  testator    in  Me.  288;    Bender  v.  Dietrick,  7  W.  & 
ninety-nine    cases   out   of   a   hundred,  S.  284;   Wright  v.  Hicks,  12  Ga.  155,,, 
has   often   been     a    subject    of    com-  56  Am.  Dec.  451. 

601 


§    480  LAW    OF   WILLS.  [pART  VI. 

entlv  of  a  will,  have  taken  the  property  in  question  under  the 
appropriate  statutes  of  descent  and  distribution ;  ^  though  doubt- 
less originally  the  technical  heir-at-law,  he  who  after  his  ancestor's 
death  intestate  had  a  right  to  the  lands  of  which  such  ancestor  was 
seised  found  himself  the  law's  especial  favorite.  To  such  a  maxim 
is  due  a  variety  of  precedents  which  we  shall  note  hereafter ;  and 
this  artificial  presumption  chief  of  all,  that  any  devise  of  lands  to 
a  person  without  words  of  limitation,  even  though  to  the  testator's 
own  spouse,  confers  an  estate  for  life  only.^ 

It  may  be  safely  laid  down,  that  of  two  equally  probable  inter- 
pretations of  a  will  that  shall  be  adopted  which  prefers  the  family 
and  kindred  of  the  testator  to  utter  strangers.^  And  where  a 
testator  gives  the  whole  or  part  of  his  estate  to  his  next  of  kin,  and 
leaves  the  proportions  doubtful,  it  is  natural  to  suppose  that  he 
meant  the  statutory  form  of  distribution  to  prevail.^  Hence  in 
case  of  doubt  a  construction  of  the  will,  as  to  property,  which  con- 
forms most  clearly  to  the  general  statutes  of  descent  and  distribu- 
tion should  prevail.^ 

In  general,  it  has  been  ruled  that  an  heir  cannot  be  disinherited 
imless  the  estate  is  given  by  the  will  to  some  one  else.® 

§  480.  The    Same    Subject:     Favor    to    Children    and    Lineal 
Descendants,  etc. 
Thus  it  is  particularly  as  to  one's  own  children  or  lineal  de- 

1.  1  Jarm.  Wills,  339,  623;  2  lb.  Wheat.  204.  See  this  presumption 
841;   4  Beav.   318.  Jarnian   speaks  of      discussed  in  §  483,  post. 

"the  heir  or  next  of  kin."      And  see  3.   Downing   v.   Bain,   24   Ga.    372; 

Goodwin    v.     Coddinfjton.    154   N.   Y.  Wood   v.  Mitcham,  92  N.   Y.   375. 

283.  48  N.  E.  729;  Wood rufT  v.  White,  4.   Dunlap's  Appeal,   116   Penn.   St. 

81  A.  1134,  79  N.  J.  Eq.  225;   115  P.  500,  9  A.   936. 

296.  15  Oreg.  95;  Grothe's  Estate.  78  5.  62  Conn.  393,  499,  26  A.  482,  27 

A.  88,  229  Penn.  186;   95  N.  E.  471,  A.  77. 

250  111.  481;   131  N.  W.  909,  89  Neb.  6.  85     Va.     459;     45     N.     E.     259; 

422.    See  Rules  V.  &  VI.  in  foot  note,  Lawrence    v.     Smith.     163     111.     149, 

post,  §   492.  166;    Zimmerman    v.    Hafer,   81   Md. 

2.  King  V.  Aokormnn.  2  Black,  408.  347,  32  A.  316;  CoflFman  v.  CofTman, 
17    L.    Ed.    292;    Wright   v.    Donn.    10  85  Va.  459,  17  Am.  St.  Rep.  69,  2  L. 

G02 


CITAP.  I.]  GENERAL    RULES    OF    CONSTRUCTIOII^.  §    480 

scendants ;  and  the  nearer  by  blood  to  the  testator  is  the  heir  or  next 
of  kin  in  natural  relationship,  the  less  do  courts  incline  to  construe 
the  will  as  though  the  maker  were  devoid  of  natural  affection,  not 
to  add  a  sense  of  duty.  Our  modern  legislation,  as  already  shown, 
fortifies  the  general  presumption  that  the  name  of  any  child  omit- 
ted from  the  will  was  accidentally  left  out,  and  not  purposely;  and 
thus  are  the  harsh  consequences  of  disinheritance  avoided  if  only  a 
reasonable  doubt  remain  of  the  testator's  real  intention.  It  is  not 
to  be  readily  assumed  therefore  that  a  will  purposes  disinheriting 
a  son  or  a  daughter.^  Posthumous  offspring  receive  indulgent  con- 
sideration, wherever  a  will  comes  up  for  construction.^  In  general 
the  testator's  intention  to  disinherit  an  afterborn  child  must  be  in 
some  way  indicated  in  the  will,  if  not  positively  expressed.^  Lineal 
issue,  too,  are  presumably  favored  in  construction  as  against  all 
collaterals.^  Indeed,  under  the  Louisiana  code  a  testator  cannot 
dispose  of  more  than  one-fifth  of  his  property  to  the  exclusion  of 
a  child ;  but  the  child  becomes  the  "  forced  heir,"  so  to  speak,  of 
the  residue.^ 

Infant  children,  most  of  all,  deserve  a  court's  solicitude ;  for 
those  at  least  of  tender  years  can  hardly  be  thought  to  have  in- 
curred the  parent's  just  resentment,  or  to  deservedly  forfeit  what 
naturally  belongs  to  them ;  and  being  themselves  unable  to  protect 
their  own  inheritance,  the  tribunal  of  justice  should  secure  those 
rights  for  them  where  the  rules  of  interpretation  permit  it.  Grant- 
ing that  the  legal  obligation  of  a  father  to  support  his  young 

R.  A.   848,   8   S.   E.   672;    138  N.   W.  disinherits     children,    whether    after- 

629,  151  Wis.  231:  NicoU  v.  Irby,  77  born   or   not.     165   111.   561,    56   N.    E. 

A.  957,  83  Conn.  530.  240;   Heeb  v.  Heeb,  93  Iowa,  416,  61 

7.  Weatherhead  v.  Baskerville,  41  N.  W.  934;  101  Tenn.  712,  50  S.  W. 
How.  329,  13  L.  Ed.  717;  Blagge  v.  760;  Hutchinson  v.  Hutchinson,  95 
Miles,  1  Story,  426;  supra,  §  20.  N.  E.  143,  250  111.  170;  Villar  v.  Gil- 

8.  Moffit  V.  Varden,  5  Cr.  C.  C.  bey,  (1907)  A.  C.  139  (unborn  child). 
65S.  1.  Aspy  V.  Lewis,  152  Ind.  493,  52 

9.  Lurie  v.  Radnitzer,  166  111.  609.  X.   E.    756. 

46  N.  E.  116;  of.  124  K  C.  200.    But  2.  Patterson  v.  Gaines,  6  How.  550, 

a  will  clearly  drawn,  which  gives  all      12  L.  Ed.  553.    See  §§  424-426. 
absolutely    to    the    surviving  spouse, 

603 


§    481  LAW   OF   WILLS.  [pART  VI. 

children  is  not  continued  upon  his  estate  after  his  death,  yet  every 
true  parent  recognizes  the  moral  obligation ;  and  so  natural  is  this 
feeling  that  courts  may  well  presume  that  the  parent  made  his  will 
under  its  influence.^ 

§  481.  The  Same  Subject. 

■  But  by  children,  lineal  descendants  or  heirs  and  next  of  kin  gen- 
erally, in  the  present  connection,  we  mean  those  who  are  legitimate. 
'No  such  presumption  arises  in  favor  of  a  testator's  illegitimate 
relatives;  but,  in  the  absence  of  clear  intent  on  his  part  to  the 
contrary,  those  who  are  legitimate  shall  take  the  preference.*  But 
among  one's  legitimate  and  legitimized  offspring,  American  policy 
favors  the  presumption  that  no  one  shall  be  favored  above  the  rest, 
but  all  shall  share  equally  in  the  parent's  bounty,  unless,  of  course, 
the  will  in  question  shows  a  different  intention.  As  concerns  a 
testator's  gifts,  however,  to  other  parties,  their  children,  being  no 
issue  of  his  own,  are  not  to  be  brought  within  the  scope  of  his 
bounty  by  any  mere  implication  of  the  will.^  And  as  among  a 
testator's  collateral  relatives  or  strangers,  favoring  presumptions 
carry  little  or  no  weight  against  the  testator's  apparent  meaning.® 

§  481a.  Favor  to  the  Surviving  Spouse. 

As  wills  have,  in  our  law,  always  favored  the  surviving  husband, 

3.  See  Vail  v.  Vail,  10  Barb.  69;  6.  Jodrell  Re,  44  Ch.  D.  590;  afF. 
Weatherhead  v.  Baskerville,  11  How.      App.  Cas.   (1891)    304. 

329,  13  L.  Ed.   717.  As  to  an  adopted  child,  see  Wallace 

4.  See  Appel  v.  Byers,  98  Penn.  St.  v.  Noland,  92  N.  E.  956,  246  111.  535 
479;  Scholl's  Estate,  100  Wis.  650,  (statute  policy  followed);  194  Mass. 
76  N.  W.  716.  But  by  plain  reference  540;  61  A.  598,  27  R.  I.  209,  495; 
in  the  will,  legitimate  and  illegiti-  Warden  v.  Overman,  135  N.  W.  649, 
mate   children   may   be  placed   on   an  155  Iowa,  1. 

equal  footing.  Stewart  v.  Stewart,  31  See,   further.   Pierce  v.   Knight,   64 

N.  J.  Eq.  398;   (1897)  2  Ch.  208.  238;  N.   E.   692,   182  Mass.   72    (after-born 

§    534;    (1905)    P.   37;   Central  Trust  children  of  nephew  or  niece);   58  So. 

Co.  V.  Skillin,  138  N.  Y.  S.  884    (the  141,   130  La.  442    (children  of  difTer- 

intent  of  the  will  controls).  See,  also,  ent  marriages)  ;   Schapiro  v.  Howard, 

§  534,  post.  78  A.  58,  113  Md.  3G0;   §  534,  post. 

5.  See  Rawlins's  Trusts,  45  Ch.   D. 
299. 

G04 


CHAP.  I.]  GENERAL   RULES    OF    CONSTRUCTIOX.  §    482 

SO  far  as  any  testamentary  disposition  by  the  wife  was  concerned, 
so,  too,  our  latest  decisions,  in  America  at  least,  indicate  a  growing 
disposition  to  liberally  favor  in  construction  the  surviving  wife, 
even  as  against  the  common  offspring  of  the  marriage.^ 

§  482.  The  Same  Subject;  Deeper  Principle  favors  what  is  Just 
and  Natural, 
This  strict  rule  in  favor  of  the  "  heir-at-law  "  is  of  feudal  origin ; 
and  modern  instances  are  not  wanting,  in  which  eminent  judges, 
and  those  particularly  of  our  own  country,  show  a  disposition  to 
repudiate  it  in  favor  of  the  simple  test  of  intention  under  the  par- 
ticular will.*  But  the  stability  of  land  titles  and  the  force  of  set- 
tled precedents  in  the  jurisdiction  where  lands  which  are  devised 
happen  to  lie  most  needs  counteract  and  check  such  a  disposition. 
It  is  undesirable,  certainly,  at  this  day,  for  an  American  court  to 
distort  and  violate  the  provisions  of  a  will,  well  ordered  and  well 
expressed,  out  of  an  undue  sanctity  for  real  estate  and  the  ancient 
privilege  of  inheriting  it ;  yet,  as  we  apprehend,  this  maxim  which 
has  so  long  offset  a  testator's  real  wishes,  has  a  deeper  and  more 
lasting  foundation  in  human  experience.  Our  reference  to  child- 
ren and  the  natural  claims  of  kindred  may  confirm  this  impression. 
And  the  broader  principle  of  law  appears  to  be  this :  that  what- 
ever the  policy  of  the  age  and  jurisdiction  for  the  time  being  may 
pronounce  unwise  or  unjust,  even  though  not  really  illegal,  shall 
be  presumed  against,  in  the  construction  of  a  will,  unless  the  plain 
intention  of  the  testator  appears  to  the  contrary;  a  maxim  which 
may  serve  for  courts  in  the  present  and  future  as  well  as  the  past, 
and  through  all  the  shifting  mutations  of  public  authority  or  public 
opinion.  It  has  been  shown  that  testaments  may  stand  in  probate 
which  are  harsh,  unkind,  unnatural,  partial,  or  foolish  in  their 

7.   Heeb  v.  Heeb,  93   Iowa,  416,   61      Estate,   88   A.   432,   241    Penn.    253; 
jSr  .W.  932;  Hawhe  v.  Chicago  R.,  165      143  N.  W.  1050,  155  Wis.  46. 
111.    561,    46   N.    E.    240;    Moffett    v.  8.   Taney,   C.   J.,   in  Bosley  v.   Bos- 

Elmendorf,  152  N.  Y.  475,  57  Am.  ley,  14  How.  390,  397,  14  L.  Ed.  468; 
cSt.  Rep.  529,  46  N.  E.  845;    Moore's      King  v.  Ackerman,  2   Black,  408,   17 

L.   Ed.   292. 

605 


§    483  LAW    OF   WILLS.  [pAKT  VI. 

provisions,  if  not  the  product  of  a  mind  insane  or  under  coercion, — 
in  short,  that  one  may  do  as  he  wills  with  his  own,  provided  he  does 
what  is  not  unlawful ;  ^  but  such  wills  are  prejudiced  in  their  ad- 
mission, notwithstanding;  and  so,  too,  when  interpreting  a  will, 
the  presumption  should  be  in  favor  of  a  disposition  to  do  what  was 
natural,  fair,  and  reasonable,  unless  such  a  construction  would  de- 
feat the  testator's  plain  intention  in  the  given  case.  For  we  can- 
not deny  that  the  intention  of  a  testator,  though  harsh  and  unrea- 
sonable, must  guide,  when  clearly  expressed,  if  it  violates  no  prin- 
ciple of  law  or  morality.^ 

§  483.  Devise  without  Words  of  Limitation;   Heir  as  against 
Devisee. 

With  regard  to  a  devise  Avithout  words  of  limitation  the  heir-at- 
law  is  less  favored  in  construction  than  formerly.  The  old  rule 
stood  that  a  devise  of  lands  to  A  simply,  conferred  an  estate  for 
life  only,  unless  an  intention  was  disclosed  in  the  will  to  the  con- 
trary; and  the  rule  was  the  same  where  the  devise  to  A  was  of 
"  lands,  tenements,  and  hereditaments."  If,  therefore,  the  words 
of  the  testator  denoted  only  a  description  of  the  specific  land  or 
estate, — as  if  he  devised  a  certain  farm  to  A,  or  to  A  and  his 
assigns, — only  a  life  estate  would  pass.^ 

But  this  rule  operated  very  unjustly;  and  the  courts  showed 
much  astuteness  to  avoid  an  interpretation  which  in  many  in- 
stances must  have  subverted  the  testator's  purpose.  English  pre- 
cedents established  that  a  devise  of  land  to  A  "  forever  "  might 
pass  the  fee ;  ^  or  a  devise  to  A,  his  executors  and  administrators ;  * 

9.  Supra,  §§  22,  77,  165.    And  see  Cowp.   306;    Hopewell   v.   Ackland,    1 

Scarborough  v.   Baskin,  44   S.  E.  63,  Salk.  239 ;  Wright  v.  Denn,  10  Wheat. 

65  S.  C.  558;  Robinson  v.  Martin,  93  238,    6    L.    Ed.  312;   Van  Alstyne  v. 

N.  E.  488,  200  N.  Y.  159,  86  A.  899;  Spraker,    13   Wend.   5S2;    Lummus   v. 

Williams's    Succession,    61    So.    852,  Mitchell,  34  N.  H.  45;  King  v.  Ack- 

132   La.   865.  erman,  2  Black,  408,  17  L.  Ed.  292 

1.  See  Brearley  v.  Brearlcy,  9  N.  J.  3.  Co.  Lit.  96. 

Eq.   91.  4.  Rose  v.  Hill,  3  Burr.  18S1. 

2.  Co.  Lit.  96;   Hogan    v.    Jackson, 

006 


CHAP.  I.]  GENEEAL   RULES    OF    CONSTRUCTIOlSr.  §    484 

or  a  devise  of  land  to  be  at  the  disposition  of  A,  or  to  be  kept  in 
his  name  and  family.^ 

In  this  country,  a  devise  after  a  life  estate,  especially  if  made  to 
one  heir,  with  an  evident  intention  of  excluding  the  other  heirs, 
has  in  several  instances  been  held  to  pass  a  fee.^  And  one  devise 
made  simply  has  been  supported  as  a  devise  in  fee  by  coupling  it 
with  another  in  the  will  which  was  used  with  suitable  words  of 
limitation.^  Indeed,  in  many  States  it  has  been  held  that  when- 
ever an  intention  to  dispose  of  the  fee  can  by  any  fair  inference  be 
drawn  from  the  will,  the  technical  rule  must  be  excluded ;  and  that 
very  slight  circumstances  will  be  laid  hold  of  as  indicating  such 
an  intention.^  And  the  fact  that  real  and  personal  estate  are  given 
together  by  the  same  clause  and  in  the  same  language  and  con- 
nection has  been  held  of  great  moment  if  not  conclusive  as  passing 
a  fee.* 

§  484.  The  Same  Subject;  "Estate,"  etc.;  Bffect  of  a  Charge, 
Gift  over,  or  Trust. 

Lord  Mansfield  and  others  checked  further  this  sacrifice  of  the 
intended  devisee  to  the  heir,  by  ruling  that  whenever  the  words  of 
devise  denoted  the  quantum  of  interest  or  property  that  the  tes- 
tator had  in  the  lands  devised,  then  the  whole  extent  of  such  in- 
terest would  pass  to  the  devisee.  And  hence  the  established  ex- 
ception that  the  word  "  estate  "  or  "  estates  "  sufiiciently  passed  the 
fee  simple  of  land,  although  accompanied  by  words  of  locality  or 

5.  Wood  V.  Wood,  1  B.  &  Aid.  518.  Ind.  282;  Charter  v.  Otis,  41  Barb. 
And    see    Oates    v.    Brydon,    3    Burr,      529. 

1895;   Wyatt  v.  Sadler,  1  Munf.  537;  8.   Hawkins     Wills,      131,    Swords' 

Bool  V.  Mix,  17  Wend.  127;    Clayton  American  note;   Lummus  v.  Mitchell, 

V.  Clayton,  3  Binn.  483.  34   N.   H.   46;    Cleveland   v.   Spilman, 

As      to      considering      non-resident  25  Ind.  99. 

alienage    in    construction,    see    Green-  9.    lb.;     Packard    v.    Packard,     16 

wood  V.  Greenwood.  178  111.  387.  Pick.  193 ;  Mulvane  v.  Rude,  146  Ind. 

6.  Plimpton  v.  Plimpton,  12  Cush.  476,  45  N.  E.  659.  Under  the  Iowa 
463;  Butler  v.  Little,  3  Greenl.  241;  code  an  heir  is  disinherited  when- 
1  Grant  Gas.  240.     Cf.  1  Barb.  112.  ever   an   ancestor's   devise  chooses    to 

7.  Cook  V.  Holmes,  11  Mass.  532;  omit  providing  for  him.  74  Iowa, 
Neide    v.    Neide,     4     Rawle,     82;      7      279. 

607 


§    484  LAW    OF   WILLS.  [pART  VI. 

occupation ;  and  this  notwithstanding  that  "  estate  "  is  an  equiv- 
ocal word  and  might  mean  either  the  land  itself  or  the  testator's 
interest  in  it.^  A  devise  of  "  all  mj  estate  called  C,"  etc.,  therefore, 
or  other  similar  expression,  even  though  applicable  in  a  strict  sense 
to  corpus  rather  than  interest,  has  thus  been  liberally  applied  in 
the  devisee's  favor,^  in  spite  of  an  occasional  check  where  the  word 
"  estate  "  is  not  an  operative  word  occurring  in  the  gift  itself,  but 
introduced  somewhat  later  in  the  will  by  way  of  reference.^  The 
words  "  effects  "  as  used  in  a  devise  of  "  all  my  effects  real  and 
personal,"  or  the  word  or  expression  "  property,"  "  lands,"  "  my 
right,"  "  all  I  have,"  and  the  like,  have  also  been  interpreted  by 
way  of  exception  as  denoting  the  quantum  of  interest  bestowed  in 
the  devise.* 

So,  too,  has  an  indefinite  devise  been  enlarged  by  the  imposition 
of  a  charge,  however  small,  on  the  person  of  the  devisee  or  on  the 
quantum  of  his  interest;  though  not  by  the  mere  subjection  of  the 
devise  to  a  charge.^  A  gift  over  in  the  event  of  the  devisee  dying 
under  age  has  also  been  held  to  make  the  devise  an  effectual  fee 
simple  by  intent ;  ^  or  a  devise  with  power  to  dispose  of  the  fee.^ 
And  once  more  has  the  heir  been  excluded  in  construction,  when^ 
ever  the  estate  in  fee  is  devised  to  trustees  in  trust  for  A,  in- 
definitely, and  the  purposes  of  the  trust  require  the  whole  legal  fee 
to  be  in  the  trustees ;  for  here  the  beneficial  interest  in  fee  goes 
completely  to  A,  and  there  is  therefore  no  resulting  trust  for  the 
heir.* 

1.  White  V.  Coram,  3  K.  &  J.  652;  5.   Stevens  v.  Snelling.  5  East,  87; 
Child  V.  Wright,   7   East,   259;    Lam-  Burton  v.  Powers,  3  K.  &  J.   170. 
bert   V.    Paine,    3    Cranch,    97;    Haw-  6.   Burke   v.   Annis.   11   Hare,   232; 
kins   Wills,    131-133.  3  Burr,  1618. 

2.  lb.  7.   Shaw  v.  Hussey,  41   Me.  498;    1 

3.  Cf.  Burton  v.  White,  1  Exch.  Harr.  27;  Helmer  v.  Shoeiuaker,  22 
535;   Leland  v.  Adams,  9  Gray,  171.  Wend.  139. 

4.  22  L.  J.  Ch.  236;  4  Wash.  C.  C.  8.  8  T.  R.  597;  Knight  v.  Selby, 
G45;  Nicholls  v.  Butcher,  18  Ves.  3  M.  &  G.  92;  Moore  v.  Clcghorn,  12 
193;  3  Sim.  398;  6  Ohio  St.  488;  9  Jur.  591;  31  L.  J.  C.  P.  25;  Haw- 
Ponn.    St.    142;    Chamberlain    v.   Ow-  kins   Wills,   134-138. 

ings,  30  Md.  453. 

G08 


CHAP.  I.]  GENERAL   RULES   OF    CONSTHUCTION.  §    486 

§  485.  The  Same  Subject :  Modern  Statute  Rule  of  Construction. 
This  refilled  constriietion  in  favor  of  the  heir,  together  with  the 
refinements  of  exception  built  upon  it,  now  gives  way  to  the 
modern  rule  of  interpretation  as  defined  in  the  English  Act  of 
Victoria  (1837)  and  corresponding  enactments  ■  throughout  the 
United  States,  many  of  them  dating  much  earlier.^  This  modern 
rule  treats  a  devise  of  lands,  though  without  words  of  limitation,  as 
passing  the  fee  simple  to  the  devisee,  unless  an  intention  appear  to 
the  contrary/  The  natural  scope  of  the  will,  as  gathered  from  all 
its  parts,  thus  settles  in  fine  the  question  whether  or  not  a  devise  in 
fee  or  such  other  complete  interest  as  the  testator  had  power  to 
dispose  of  shall  pass,  or  instead  a  mere  usufruct  and  temporary 
enjoyment. 


§  486.  When  a  Will  takes  effect;  After-acquired  Property. 

A  will  does  not  operate  or  take  effect,  nor  are  any  rights  ac- 
quired under  it,  until  the  death  of  the  testator ;  although,  doubtless, 
it  may  speak  for  some  purposes  from  the  date  of  execution,  and  for 
others  from  the  death  of  the  testator,  according  to  the  particular 
intent  manifested  in  the  instrument  itself.^     A  will,  however,  is 

9.   In  New    Jersey,    Virginia,    and  Iowa,  196;  Means  v.  Evans,  4  Desau. 

North  Carolina,  statutes  of  this    de-  242;   21  Tex.  713. 

scription  appear  to  have  preceded  the  As    to    the    effect   of    a   subsequent 

formation  of  the  American  Union    in  statute    upon    one's   will,   see   supra, 

1787-89;    and   a    later   enactment     in  §    11. 

South  Carolina  was  held    ( 4  M'cCord,  The  general  rule  appears  to  be  that 

476)     to    merely    affirm    the    common  the  will  shall  speak  rather  from  the 

law  in  that   State.       Hawkins   Wills,  date  of  the  testator's  death  than  from 

139,    note   by    Swords.     And    see    146  the  date  of  execution,  unless  its  lan- 

Ind.  476,  45  N.  E.  659,  80  N.  E.  249,  •  guage  may  fairly  be  construed  to  the 

225   111.   408.  contrary.    Gold  v.  Judson,  supra.  But 

1.  Stat.  1  Vict.  c.  26,  §  28,  post;  intention  governs  after  all;  and  if 
(1894)  App.  Cas.  125;  Gunning's  Es-  the  will  uses  the  word  "now,"  or  a 
tate,  83  A.  60,  234  Penn.  139.  verb    in   the   present   tense,   or   other 

2.  1  Jarm.  Wills,  318-337;  2  ib.  expression  pointing  at  the  present,  it 
840;  Wakefield  v.  Phelps,  37  N.  H.  must  be  construed  accordingly.  1 
295;  Fox  v.  Phelps,  17  Wend.  393;  Jarm.  Wills,  318,  and  American  note. 
Gold     v.     Judson,    21    Conn.    616;    5  It  is  even  possible  that  the  provision 

39  609 


§    486  LAW   OF   WI"LLS.  [pAET  VI. 

not  to  be  construed,  generally  speaking,  in  the  light  of  events  sub- 
sequent to  the  testator's  death.^ 

The  old  rule  made  a  devise  of  land  speak  imperatively  at  the 
date  of  execution,  but  a  will  of  personalty  presumably  at  the  time 
of  the  testator's  death.  Hence,  after-acquired  lands  did  not  pass 
by  a  devise,  even  though  the  testator  meant  that  they  should,  but 
required  re-execution  or  a  new  devise  in  effect,  upon  the  theory 
that  the  devise  was  in  the  nature  of  a  conveyance  of  one's  particular 
real  estate.  Even  a  bequest  of  leaseholds  spoke  prima  facie  from 
the  date  of  the  will  and  did  not  include  after-acquired  leaseholds 
nor  a  renewed  lease.*  But  our  latest  legislative  policy,  English 
and  American,  permits  after-acquired  lands  to  pass  bv  will  wher- 
ever the  testator  appears  to  have  so  intended,  and  he  had  testa- 
mentary power  to  make  such  disposition.^  A  will  as  to  personalty 
is  still  presumed  to  speak  or  apply  to  one's  personal  estate  as  it  shall 
exist  at  his  death.^ 

Apart  from  statutory  changes,  the  rule  against  passing  after- 
acquired  lands  (which  of  course  favored  the  heir-at-law)  has  gen- 
erally prevailed  throughout  the  United  States ;  while,  as  in  Eng- 
land, a  bequest  of  "  all  my  personal  estate  "  or  "  the  residue  of  my 

in  a  will  should,  by  its  express  terms,  illard   Re,    16   R.    I.   254;    Ruckle    v. 

refer  to  some  expected  date  or  event  Grafflin,    86    Md.  627;  Hardenbergh  v. 

happening   between   the   date   of   exe-  Ray,   151  U.   S.   112. 

cution    and     that     of     the    testator's  6.  Garrett  v.  Garrett,  2  Strobh.  Eq. 

death,    and    require    a    corresponding  272;    Canfield   v.   Bostwick,   21   Conn, 

interpretation.    See  37  N.  J.  Eq.  482;  553;   Nichols  v.  Allen,   87  Tenn.   131, 

Northrop  v.  Troup,   195   F.   262    (not  9  S.  W.  530;  Campbell  v.  Hinton,  150 

from  date  of  tlie  probate).  S.    W.    676,    150   Ky.    546;    93   N.   E. 

3.  Carney  v.  Kain,  40  W.  Va.  758,  1120,  199  N.  Y.  569;  Hazard  v. 
23  S.  E.  650;  Gray  v.  Hattersley,  50  Gushee,  87  A.  201,  35  R.  I.  438  (not 
N.  J.  Eq.  206,  24  A.  721  from  date  of  will). 

4.  Supra,  §  29 ;  Hawkins  Wills,  14-  Even  where  the  testator's  estate  was 
18;  James  v.  Dean,  11  Ves.  383;  largely  increased  after  making  the 
Holt,  248;  Girard  v.  City,  4  Rawle,  will  by  an  inheritance  of  which  he 
333;  Haven  v.  Foster,  14  Pick.  537;  was  not  aware  at  his  death,  all  the 
2   Story,   327.  property    will    pass    as   the   will   pro- 

5.  Supra.  §  29;  Girard  v.  Philadel-  vides.  Dalrymple  v.  Gamble,  68  Md. 
phia,  2   Wall.  Jr.  301;   Smith   v.   Ed-  523,   13  A.  156. 

rington,  S  Cr.  66;    18  S.   C.  94;   Lor- 

610 


CHAP.  I.]  GENERAL    RULES    OF    CONSTRUCTION.  §    487 

personal  estate  "  meant  the  personal  estate  existing  at  the  death  of 
the  testator.^  But  in  almost  all  of  our  States,  as  also  under  the 
24th  section  of  Stat.  1  Vict.  c.  26,  in  England,  statutes  are  now 
to  be  found  abolishing  or  modifying  the  rale  of  the  common  law 
with  revspect  to  the  time  from  which  devises  of  freeholds  speak.^ 
In  applying  such  enactments  to  particular  wills,  however,  one 
must  carefully  consider  the  time  and  manner  in  which  the  local 
statute  is  declared  to  apply;  whether  to  all  wills  taking  effect 
after  the  enactment  or  only  to  such  as  are  made  subsequently. 
And  two  distinct  particulars  are  embraced  under  such  legislation : 
(1)  that  after-acquired  real  estate  shall  pass  by  a  devise  when 
such  appears  to  have  been  the  testator's  meaning;  (2)  or  that 
power  is  simply  given  to  dispose  of  after-acquired  real  estate.' 
The  preferable  rule  as  to  after-acquired  property  stands  thus, 
with  the  aid  of  legislation:  that  descriptions  whether  of  real  or 
personal  estate,  or  of  both  together,  the  subject  of  gift,  refer  to 
and  comprise  prima  facie  the  property  answering  to  that  descrip- 
tion at  the  death  of  the  testator ;  ^  but  that  at  all  events  the  inten- 
tion manifested  by  the  will  shall  prevail.^  The  presumption  against 
one's  intending  a  partial  intestacy  may  come  in  aid  of  such  a  rule 
of  construction.^ 

§  487.  Codicil  construed  vdth  the  Will. 

A  codicil  is  a  part  of  a  will,  but  with  the  peculiar  function 

7.  lb.  of  the  will.       Brimmer  v.   Sohier,    1 

8.  Supra,  §  29;  Hawkins  Wills,  18,  Cush.  133;  Wynne  v.  Wynne,  2  Swan, 
and  Swords'  American  note.  407;    33   Fed.   812;    69  Iowa,   617,   29 

9.  lb.  The  English  statute  goes  far-  N.  W.  632;  Patty  v.  Goolsby,  51  Ark, 
ther,  and  declares  that  the  intent  to  61,  9  S.  W.  246;  Welborn  v.  Town- 
speak  from  the  testator's  death  shall  send,  31  S.  C.  408,  10  S.  E.  96;  Haley 
be  presumed,  unless  a  contrary  inten-  v.  Gatewood,  74  Tex.  281,  12  S.  W. 
tion  shall  appear  by  the  will.  1  25;  92  N.  E.  970,  246  HI.  577;  Paine 
Vict.  c.  26,  §  24;   Appx.  post.  v.  Forsaith,  84  Me.  66,  24  A.  590. 

1.  An  express  declaration  of  an  in-  2.   Dunlap  v.   Dunlap,   74   Me.   402. 

tention    to    dispose   of    after-acquired  As   to   effect  of   codicil    in    carrying 

property  is  not  necessary ;  it  is  enough  after-acquired   land,   see   post,    §    487. 

if  it  can  be  inferred  from  the  terras  3.  §  490,  post. 

611 


§    487  LAW    OF   "WILLS.  [pART  VI. 

annexed  of  expressing  the  testator's  afterthought  or  amended  in- 
tention.* The  codicil  should  be  construed  with  the  will  itself ;  and 
from  its  very  nature  it  may,  as  a  context,  confirm,  alter,  or  alto- 
gether revoke  an  intention  expressed  in  the  body  of  the  instrument 
to  which  it  is  annexed.^  A  will  and  codicil  are  to  be  construed  as 
one  instrument,  and  are  to  be  reconciled  if  possible ;  ®  but  if  plainly 
inconsistent,  and  the  more  so  if  the  later  instrument  expressly  re- 
vokes whatever  is  inconsistent  with  it,  the  codicil  must  prevail ; ' 
for  a  later  repugnant  disposition  as  against  an  earlier  stands  on  a 
footing  of  presumption  far  stronger  than  the  later  clause  in  one 
and  the  same  contemporaneous  instrument.^ 

Yet  even  here  a  codicil  should  be  so  construed  as  only  to  inter- 
fere with  the  dispositions  made  in  the  will  to  the  extent  needful 
for  giving  full  effect  to  the  codicil.^  And  it  is  held  that  the  deter- 
mination expressed  by  a  codicil  to  alter  the  will  in  a  specified  par- 
ticular, negatives  by  implication  any  intention  to  alter  it  in  other 
respects.^ 

While  the  old  rule  was  in  force  which  denied  that  a  will  could 
convey  lands  acquired  after  its  execution,  the  codicil  might  prove 
very  serviceable  in  construction  with  it,  because  of  a  codicil's  re- 

4.  Supra,   §§  7,  440.  Re,  93  N.  E.  1120,  199  N.  Y.  569;  96 

5.  Brimmer  v.  Sohier,  1  Cush.  118;       N.  E.   142,  210  Mass.  105. 

Morley   v.   Rennoldson,    (1895)    1   Ch.  8.    So    with    the    latest    of    two   or 

449:   Lee  v.  Pindle,  12  Gill  &  J.  288;  more  codicils.    88   A.   499,   241   Penn. 

Armstrong  v.  Armstrong,  14  B.  Mon.  290.    And  see  §  468. 

333;   Hichcock  v.  U.  S.  Bank,  7  Ala.  9.   Ives  v.   Harris,   7   R.   I.   413;     5 

386;   163  Mass.  130,  132,  §  488,  supra.  Sandf.  467:   2  Jones  Eq.  13;   Jenkins 

6.  lb.;    Thompson   v.   Churchill,   60  v.  Maxwell,   7  Jonos  L.   612. 

Vt.   371,   14  A.   699;    Ward   v.   Ward,  1.   Qiiincy   v.   Rogers.   9   Cush   291; 

105  N.  Y.  68,  11  N.  E.  373.  Lyman   v.   Morse.   69   Vt.    325,   37   A. 

7.  Pickering    v.    Langdon,    22    Me.      1047. 

413;    3    Md.    Ch.   42;    Lee   v.    Pindle,  If  it  is  clear  that  a  trust  to  which 

svpra;  138   Penn.  St.  104,  22  A.  20;  the    codicil    refers    is    not    the     trust 

Kelley     v.     Snow,    70   N.    E.    89,    185  created  by  the  will,  but  a  separate  or 

Mass.   288;    163  Mass.   130,  39  N.   E.  independent  one,  the  language  of  the 

1015;     84    A.     765,     230     Penn.     235  codicil   alone  must  be  resorted  to   in 

(lirought  to   date   of   latest   codicil);  construction    of    such    trust.     Thomp- 

Frclinghuysen  v.  Insurance  Co..  77  A.  son  v.  Thompson,  140  Mass.  28,  2  N. 

98,  31  R.  I.   150;   Farmers  Trust  Co.  E.   119. 

612 


CHAP.  I.]       GENERAL  RULES  OF  CONSTRUCTION.  §  488 

publishing  force.^  Both  will  and  codicil  being  taken  as  one  entire 
instrument,  a  codicil  which  was  so  executed  as  of  itself  to  be  cap- 
able to  pass  land,  amounted  prima  facie  to  a  republication  of  the 
will  and  brought  it  do\vn  to  its  own  date;  consequently  the  will 
spoke  from  the  date  of  the  codicil  and  included  all  lands  acquired 
in  the  meantime.^  The  codicil  had  this  effect  on  the  construction 
of  the  will,  even  though  purporting  to  relate  only  to  personal  prop- 
erty and  confirming  nothing  in  express  terms.*  But  where  the 
codicil  showed  a  plain  intention  to  deal  only  with  the  identical 
property  embraced  in  the  will,  this  presumption  was  overcome.^ 


§  488.  Some  Effect  should  be  given  to  a  Will. 

Some  effect  should,  at  all  events,  if  possible,  be  given  to  a  will, 
however  obscure  and  informal  its  language ;  and  it  is  only  where  a 
reasonable  construction  and  the  discovery  of  the  intent  of  the 
testator  are  hopeless,  that  all  effect  should  be  denied  to  the  instru- 
ment.^ And  hence  where  a  will  admits  of  two  constructions,  one 
of  which  renders  it  operative  and  the  other  inoperative,  the  former 
is  to  be  preferred.^  So,  too,  a  clause  will  be  read  so  as  to  be  con- 
sistent if  possible  with  the  testator's  evident  intent  and  avoid  un- 
certainty.^ 

2.  Supra,  §§  7,  448a,  449.  N.   E.   283.     At  such   a  point  of  un- 

3.  Jones  v.  Shewmaker,  35  Ga.  151;  certainty,  aid  may  often  be  found  by 
Beall  V.  Cunningham,  3  B.  Men.  admitting  extrinsic  evidence.  See  c. 
390;    Acherly  v.   Vernon,   Com.    381;  3;  post. 

2  M.  &.  S.  15.  7.    1   Jarm.   Wills,   356;    2   ib.    842; 

4.  Piggott  V.  Waller,  7  Ves.  98;  4  3  Burr.  1626;  L.  R.  5  H.  L.  548;  30 
K.  &  J.  73.  Cf.  Doe  v.  Walker,  12  M.  Ky.  Law  R.  857,  99  S.  W.  925;  108 
&  W.  591;  Haven  v.  Foster,  14  Pick.  N.  W.  979,  77  Neb.  163;  33  So.  61, 
541  109   La.   38;    Seitz  v.   Faversham,    98 

5.  Bowes  V.  Bowes,  2  B.  &  P.  500;  N.  E.  385,  205  N.  Y.  197;  88  A.  432, 
Monypenny  v.  Bristow,  2  Russ.  &  241  Penn.  253;  Lomax  v.  Shinn,  162 
My.   132.  111.  124. 

6.  Den  v.  Crawford,  8  N.  J.  L.  90;  8.  Ehler's  Will,  143  N.  W.  1050. 
Wootton  V.  Redd,  12  Gratt.  196 ;  Mor-  155  Wis.  46. 

ton  V.  Woodbury,  153  N.  Y.  243;   47 

613 


§    -189  LAW    OF    WILLS.  [PAET  VI. 

§  488a.  Effect  of  Will,  whether  controlled  by  Change  of  Con- 
dition of  Estate^  etc. 

If  the  language  and  terms  of  a  will  are  not  doubtful,  the  fact 
that  the  testator  intended  to  accomplish  some  special  purpose 
thereby  cannot  control  its  effect  in  construction.  Thus,  where  a 
design  is  disclosed  by  reasons  stated  in  the  will,  to  give  more  to 
certain  poor  beneficiaries  than  to  certain  rich  ones,  under  the 
chosen  plan  of  division,  and  this  design  happens  to  be  defeated, 
because  of  changes  in  the  condition  of  the  estate  after  the  will  was 
made,  or  from  other  causes,  the  plan  which  the  testator  plainly 
prescribed  must  nevertheless  be  followed  out,  even  though  it  should 
fail  to  effectuate  his  purpose.^ 

Xevertheless,  where  a  change  in  the  condition  of  the  property 
occurs  after  the  execution  of  the  will, — as  by  the  conversion  of  the 
residue  from  real  to  personal  estate, — a  court  of  equity  inclines,  as 
between  two  constructions  of  the  will,-  to  favor  that  by  which 
the  testator's  obvious  wishes  may  be  carried  into  effect.^  And 
where  from  the  change  of  circumstances  it  becomes  obviously  im- 
possible to  execute  the  will  as  intended,  some  substantial  approxi- 
mation to  the  testator's  scheme  is  sometimes  attempted.^ 

§  489.  Presumption  of  Compliance  with  Law;  Legal  and  Ille- 
gal Provisions,  etc. 
Where,  again,  a  will  is  capable  of  two  constructions,  one  con- 
sistent and  one  inconsistent  with  the  law,  it  may  be  presumed  that 
the  testator  intended  compliance  with  the  law ;  and  upon  this  prin- 
ciple provisions  under  a  will  have  frequently  been  upheld  which, 
if  otherwise  construed,  must  have  failed.^     So,  too,  if  one  con- 

9.     Terry     v.     Smith,     42     N.     J.  1.   Bills  v.   Putnam,  64  N.  H.   554, 

Eq.      504,      8      A.      886;      supra,      §  15   A.   138. 

478.       A     change    in    the    testator's  2.  Wikle  v.  WooUey,  81  Gn.   106.  7 

condition      or      circumstances      after  S.  E.  210. 

maJsinf,'   his    will    does   not    affect    its  3.  Thompson  v.  Newlin,  8  Ired.  Eq. 

construction    as    a    rule.      Harvey    v.  32;  Andrews  v.  Rice,  53  Conn.  576,  5 

Ballard,   96   N.    E.   558,   252   111.    57;  A.  708;  152  Penn.  St.  192,  201,  25  A. 

Mason  v.  Hospital,  93  N.  E.  637,  207  513;  Klingman  v.  Gilbert,  135  P.  682, 
Mass.  419.                                                Q-^^ 


CHAP.  I.]  GENERAL   RULES    OF    CONSTRUCTION.  §    490 

struction  would  give  effect  to  the  whole  instrument  while  the  other 
would  destroy  a  part,  it  is  the  former  construction  which  should 
prevail.'*  To  all  lawful  dispositions  of  a  testator  the  courts  will 
give  due  effect  in  construction.^ 

The  maxim  that  every  one  is  presumed  to  know  the  law,  applies 
to  existing  but  not  to  future  enactments,  in  construing  a  testator's 
will  as  executed  by  him.® 

We  may  add  that  where  legal  and  illegal  bequests  or  trusts  are 
found  together,  the  disposition  is  to  uphold  those  which  are  legal, 
provided  they  may  stand  independently  and  apart;  though  it  would 
be  otherwise  if  the  legal  and  illegal  bequests  or  trusts  were  so  in- 
separably connected  as  to  constitute  an  entire  scheane,  for  there 
they  must  fall  together  for  illegality.^ 

§  489a.  Presumption  against  a  Revocation. 

In  case  of  doubtful  language,  an  interpretation  of  will  and 
codicil  is  not  favored  that  revokes  what  has  been  once  given,  if  will 
and  codicil  can  be  reconciled.' 

§  490.  Presumption  against  Intestacy. 

No  presumption  of  an  intention  to  die  intestate  as  to  any  part 
of  his  property  is  allowable  when  the  words  of  a  testator's  will  may 

90  Kan.   545    (against  perpetuities)  ;  Ind.  672.    Cf.  Andrews  v.  Lincoln,  50 

St.  Stephen's  Church  v.  Morris,  78  S.  A.  898,  95  Me.  541,  58  L.  R.  A.  103; 

E.  622,  115  Va.  225.  Murphey  v.  Brown,  62  N.  E.  275,  159 

4.  Pruden  v.  Pruden,  14  Ohio  St.  Md.  106.  And  see  54  A.  1072,  97  Me. 
251;  Nightingale  v.  Sheldon,  5  Ma-  427;  133  N.  Y.  S.  266;  34  So.  52,  109 
son,  336,  234  Penn.  St.  139.  La.  994;  Lally's  Will,  92  N.  E.  1089, 

5.  Lowry  v.  Muldrow,  8  Rich.  Eq.  198  N.  Y.  608;  128  N.  W.  899,  144 
241;  Tlirasher  v.  Ingram,  32  Ala.  645.  Wis.   238;    77   A.   957,   83    Conn.   369 

6.  Taylor  v.  Mitchell,  57  Penn.  St.  (perpetuities)  ;  Kahn  v.  Tierney,  94 
209.  N.  E.  1095,  201  N.  Y,  516;   99  N.  E. 

7.  Kennedy  v.  Hoy,  105  N.  Y.  134,  662,  255  111.  433;  143  S.  W.  778,  147 
1  N,  E.  390;  32  R.  L  104,  78  A.  507;  Ky.   85. 

120  Am.  St.  Rep.   728,   20'5   Mo.  202,  8.   Goodwin   v.   Coddington,   154   N. 

104  S.  W.  1;   De  Witt's  Will,  188  N.  Y.  283,  48  N.  E.  729.    See  Holmes  v. 

Y.  567,  80  N.  E.  1108;  150  Iowa,  628;  Miner,  93  N.  E.  230,  247  111.  586    (di- 

134   S.  W.   1139,   142  Ky.   706;    Skin-  vesting  what  has  already  vested), 
ner    v.    Spann,    93    N.    E.    1061,    175 

615 


491 


LAW   OF   WILLS. 


[tart  VI. 


fairly  carry  tlie  whole;  for  no  one  is  supposed  to  make  Lis  will 
without  meaning  to  dispose  of  all  his  estate.^  It  is  true,  notwith- 
standing, that  such  a  partial  testament  may  be  intended  and  may 
take  effect.^  Intestacy  in  effect  is  disfavored  as  a  presumed  in- 
tention.^ If  a  general  intention  appear  in  the  will  to  make  therein 
a  complete  general  disposition  of  all  the  testator's  property,  this 
cannot,  it  is  true,  control  particular  directions  plainly  to  the  con- 
trary nor  enlarge  dispositions  beyond  their  legitimate  meaning; 
and  yet  this  general  intent  is  allowed  weight  in  determining  what 
was  intended  by  particular  devises  or  bequests  that  may  admit  of 
an  enlarged  or  limited  construction.^  It  is  further  to  be  pre- 
sumed that  a  general  residuary  gift  will  carry  particular  property 
not  otherwise  disposed  of.* 


§  491.  By  what  Local  Wills  are  interpreted. 

Real  and  personal  property  are  to  be  distinguished  in  the  in- 
terpretation of  a  will.     As  to  real  property,  the  well  settled  rule 


9.  Johnson  v.  Brasington,  156  N. 
Y.  181,  50  N.  E.  589;  168  111.  214,  48 
N.  E.   94. 

1.    Given    v.    Hilton,    5    Otto,    591 
Leigh  V.   Savidge,   14  N.  J.   Eq.   124 
Gilpin  V.  Williams,  17  Ohio  St.  396 
Eoyd  V.  Latham,  Bush.  L.  365;  Gour- 
ley  V.  Tliompson,  2  Sneed,  387;  Rau- 
denbaeh's   Appeal,   87   Penn.    St.    51; 

102  Penn.  St.  207;  Damon  v.  Bibber, 
135  Mass.  458;  §§  7,  449;  Minkler  v. 
Simons,  172  111.  323,  50  N.  E.  170; 
Gallagher  v.  McKeague,  125  Wis.  116, 

103  Md.  233;  Welsh  v.  Gist,  61  A. 
665;  101  Md.  606;  Willat  Re,  (1905) 
1  Ch.  378;  221  111.  59,  77  N.  E.  454; 
Alsop  V.  Alsop,  67  Conn.  249,  34  A. 
1106;  Bishop  V.  McClelland,  44  N.  J. 
Eq.  450,  16  A.  1;  Boston  Co.  v.  Cof- 
fin, 152  Mass.  95,  8  L.  R.  A.  740,  25 
N.  E.  30;  Carney  v.  Kain,  40  W.  Va. 
758,  23  S.  E.  650;  99  Tenn.  68,  41  S. 


W.  333;  55  So.  289,  79  A.  304,  78  N. 
J.  Eq.  410;  79  A.  173,  229  Penn.  542, 
68  W.  Va.  729,  70  S.  E.  760;  Spreck- 
les'  Estate,  123  P.  371.  162  Cal.  559; 
7  S.  E.  910,  136  Ga.  428;  133  N.  W. 
8,  167  Mich.  306;  83  A.  433,  34  R.  L 
316;  Gray  v.  Garnett,  146  S.  W.  18, 
148  Ky.  34  (presumption  overcome)  ; 
135  N.  W.  124,  117  Minn.  409,  97 
N.  E.  774,  211  Mass.  327;  86  A.  899; 
88  A.  424,  241  Penn.  240;  Nagle  v. 
Conard,  87  A.  1119,  80  N.  J.  Eq.  252. 

2.  Houghton  v.  Brantingham,  86  A. 
664,    86    Conn.   630. 

3.  lb. 

4.  Bagot  Re,  (1893)  3  Ch.  348; 
145  111.  625,  34  N.  E.  467;  Holmes  v. 
Mackenzie,  84  A.  340,  118  Md.  210; 
97  N.  E.  1061,  253  111.  528;  80  A. 
531;  231  Penn.  271;  130  N.  Y.  S. 
649;  78  A.  320,  83  Conn.  654. 


616 


CHAP.  I.]  GENERAL    RULES    OF    CONSTRUCTION.  §    491 

of  England  and  the  United  States  is  that,  no  matter  where  the  will 
was  made  or  in  what  language  written,  the  law  where  the  land  lies 
must  govern  in  the  construction  of  the  will  as  well  as  in  its  method 
of  execution."  Thus,  if  a  posthumous  child  not  provided  for  by 
the  testator  has  rights  of  inheritance  in  the  State  or  country  where 
the  decedent  leaves  real  estate,  though  not  in  the  testator's  own 
domicile,  those  rights  will  fasten  upon  such  real  estate.®  And  in  the 
interpretation  of  language  which  has  a  peculiar  meaning  in  the 
local  jurisdiction  where  the  land  lies,  that  meaning  must  prevail 
in  the  devise.^  The  principle  of  local  situation  goes  still  deeper, 
making  the  validity  of  the  devise  itself  as  regards  the  local  land 
depend  upon  its  conformity  to  the  requirements  of  local  law.^ 

A  will  of  personalty  (or  of  movables,  rather)  is,  on  the  other 
hand,  governed  in  construction  by  the  law  of  the  testator's  last 
domicile ;  and  here  again  the  principle  is  a  broad  one,  embracing 
questions  of  validity  as  well  as  interpretation.  Whether  one  shall 
take  under  the  will  as  legatee,  or  aside  from  it  by  right  of  distri- 
bution, whether  the  decedent  was  himself  capable  and  left  a  prop- 
erly executed  will,  these  and  all  kindred  questions  depend,  like  the 
general  settlement  of  the  estates  of  the  dead,  upon  the  law  of  the 
decedent's  last  domicile.'    But  the  law  where  the  will  was  made  is 

5.  1  Jarm.  Wills,  1,  2,  and  Ameri-  8.  See  Schoul.  Exrs.  &  Adrars.  §§ 
can  note;  2  ib.  840:  Story,  Confl.  1015-1020  (Vol.  II);  Turner's  Estate^ 
Laws,  §  474;  4  Burge  Coram.  Col.  &  143  N.  Y.  S.  692.  As  to  power  of  ap- 
For.  Law,  pt.  2,  c.  15;  Kerr  v.  Moon,  pointment  see  103  N.  E.  315,  209  N. 
9    Wheat.    565,    6   L.   Ed.    1611;     Pre.  Y.    585. 

Ch.  577;   Bull's  Will,  111  N.  Y.  624,  9.  1  Jarm.  Wills,  2,  and  Bigelow's 

19  N.  E.  503;   82  N.  E.  376,  229  111.  Am.  note;   Story,  Confl.  Laws,  §  465; 

341,   13  L.   R.  A.    (N.  S.)    780;    Hig-  Anstruther  v.  Chalmer,  2  Sim.  1;   25 

gins  V.  Eaton,  188  F.  938;   148  S.  W.  Beav.   218;    Schoul.   Exrs.    &    Admrs. 

33,  149  Ky.  158;   188  F.  938;  Lougee  §§   1015-1020    (Vol.  II);     Fergusson's 

V.   Wilkie,   95   N.   E.   221,   209   Mass.  W'ill,    (1902)    1   Ch.   483.     Thus   is   it 

184   (a  plain  codicil  provision  uncon-  as   to   the   sucession   of   a   foreigner's 

nected)  ;   Lewis  v.  Payne,  77  A.   321,  personal  estate,  where  he  leaves  spec- 

113  Md.  127.  ific    legacies     to    American    relatives, 

6.  Eyre  v.  Storer,  37  N.  H.  114.  save   so   far   as   he   has   by  authority 

7.  Story,  Confl.  Laws.  §  479;  1  of  such  foreign  law  provided  for  a 
Jarm.  Wills,  2,  and  Bigelow's  note.  limited   administration   in   this   coun- 

617 


§    492  LAW   OF   WILLS.  [PAET  VI. 

allowed  some  force  bj  comity  of  statute  or  otherwise.  A  testa- 
mentary disposition  of  personal  property  valid  at  the  testator's  last 
domicile,  will,  moreover,  be  respected  by  tribunals  elsewhere  as 
valid,  and  allowed  to  take  effect,  where  the  law  is  different,  if 
neither  a  local  statute  nor  fundamental  public  policy  positively  for- 
bids.^ 

Where,  then,  one's  will  purports  to  dispose  of  property  within 
and  realty  without  the  domicile,  it  may  happen  that  the  former 
disposition  holds  valid,  but  not  the  latter.  But  a  clause  which 
grants  both  real  and  personal  property  upon  the  same  trust  is 
generally  severable,  and  may  take  effect  as  a  disposition  of  person- 
alty within  the  jurisdiction,  even  though  the  devise  of  realty  else- 
where located  should  fail.^ 

§  492.  Summary:    Mr.  Jarman's  Rules  of  Construction. 

Rules  of  presumption,  such  as  we  have  set  forth  in  this  chapter, 
yield  to  the  exigencies  of  a  case  in  hand ;  and  as  for  the  maxims  yet 
to  be  applied  in  detail,  no  summary  is  worth  attempting.  But  Mr. 
Jarman's  general  rules,  framed  upon  an  exhaustive  review  of  the 

try.    Eockwell  v.  Bradshaw,  67  Conn.  S.   Ct.   329,   51   L.   Ed.   574.    And   see 

8,  34  A.  758.   And  see  Bedell  v.  Clark,  104  N.  Y.  S.  4 ;  Davis  v.  Upson,  70  N. 

137  N.  W.  627,  171  Mich.  486;  John-  E.    602,    209    111.    26    (bonds   held   by 

son   V.  Johnson,   102   N.   E.   465,    215  agent     in     another     State)  ;     Gross's 

Mass.  276;   87  A.  951,  120  Md.  541.  Goods,    (1904)    P.   269    (law  of  domi- 

1.  As  e.  g.  in  a  gift  in  contraven-  cile  as  to  revocation  by  marriage)  ; 
tion  of  the  local  rule  of  perpetuities.  Beaumont's  Estate,  65  A.  799,  216 
Dammert  v.  Osborn,  140  N.  Y.  30,  35  Penn.  350  (change  of  domicile  as  to 
X.  E.  407;  141  N.  Y.  564,  35  IST.  E.  invalid  execution);  Blaeksher  Co.  v. 
1088.    And    see    Gaines's    Succession,  Northrup,   57   So.    743. 

45  La.  Ann.  1237,  14  So.  233.  3.   Mr.   Jarman's  twenty-four   rules 

2.  lb.;  Knox  v.  Jones,  47  N.  Y.  are  stated  as  follows  in  the  4th  Eng- 
389.  lish  edition  of  this  valuable  treatise. 

Yet,  as  to  the  validity  of  a  certain  Vol.  II,  pp.  840-843: 

bequest    (e.  g.  whether  a  certain  cor-  I.  That  a,  will  of  real  estate,  where- 

poration   can   take)    the  law    of    the  soever  made,    and    in    whatever    lan- 

Icgatee's     domicile     will     prevail     in  gunge  written,  is  construed  according 

comity,   unless   the   law   of  testator's  to  the  law  of  England,  in  which    the 

domicile  absolutely  prohibits.      Ingle-  property  is  situate,  but  a  will  of  per- 

liart  V.   Inglehart,  204  U.  S.   478,   27  sonalty  is  governed  by  the  lex  domi- 

G18 


CHAP.  I.] 


GENERAL   EULES    OF    CONSTRUCTION. 


§    492 


English  cases,  have  gained  such  credit  in  the  courts,  that  we  shall 
set  them  forth  in  our  notes  for  the  convenience  of  the  American 
reader  by  way  of  comparison;  though  in  a  few  instances  their 


cilii.  II.  That  technical  words  are 
not  necessary  to  give  effect  to  any 
species  of  disposition  in  a  will.  III. 
That  the  construction  of  a  will  is  the 
same  at  law  and-  in  equity,  the  juris- 
diction of  each  being  governed  by  the 
nature  of  the  subject;  tliough  the 
conquences  may  differ,  as  in  the  in- 
stance of  a  contingent  remainder, 
which  is  destructible  in  the  one  case, 
and  not  in  the  other.  IV.  That  a  will 
speaks,  for  some  purposes,  from  the 
period  of  execution,  and  for  others 
from  the  death  of  the  testator;  but 
never  operates  until  the  latter  period. 
V.  That  the  heir  is  not  to  be  disin- 
herited without  an  express  devise,  or 
necessary  implication;  such  implica- 
tion importing,  not  natural  necessity, 
but  so  strong  a  probability,  that  an 
intention  to  the  contrary  cannot  be 
supposed.  VI.  That  merely  negative 
words  are  not  sufficient  to  exclude  the 
title  of  the  heir  or  next  of  kin.  There 
must  be  an  actual  gift  to  some  other 
definite  object.  VII.  That  all  the 
parts  of  a  will  are  to  be  construed  in 
relation  to  each  other,  and  so  as,  if 
possible,  to  form  one  consistent 
whole;  but,  where  several  parts  are 
absolutely  irreconcilable,  the  latter 
must  prevail.  VIII.  That  extrinsio 
evidence  in  not  admissible  to  alter, 
detract  from,  or  add  to,  the  terms  of 
a  will  (though  it  may  be  used  to 
rebut  a  resulting  trust  attaching  to 
a  legal  title  created  by  it,  or  to  re- 
move a  latent  ambiguity  [arising 
from  words  equally  descriptive  of  two 
or  more  subjects  or  objects  of  gift]. 


IX.  Nor  to  vary  the  meaning  of 
words;  and,  hence,  in  order  to  attach  a 
strained  and  extraordinary  sense  to  a 
particular  word,  an  instrument  exe- 
cuted by  the  testator,  in  which  the 
same  word  occurs  in  that  sense,  is 
not  admissible.  X.  But  the  court  will 
look  at  the  circumstances  under 
which  the  devisor  makes  his  will,  as 
the  state  of  his  property,  of  his  fam- 
ily, and  the  like.  XI.  That,  in  gen- 
eral, implication  is  admissible  only 
in  the  absence  of,  and  not  to  control, 
an  express  disposition.  XII.  That  an 
express  and  positive  devise  cannot  be 
controlled  by  the  reason  assigned,  or 
by  subsequent  ambiguous  words,  or 
by  inference  and  argument  from  other 
parts  of  the  will;  and,  accordingly, 
such  a  devise  is  not  affected  by  a  sub- 
sequent inaccurate  recital  of,  or  ref- 
erence to,  its  contents ;  though  re- 
course may  be  had  to  such  reference 
to  assist  the  construction,  in  case  of 
ambiguity  or  doubt.  XIII.  That  the 
inconvenience  or  absurdity  of  a  de- 
vise is  no  ground  for  varying  the  con- 
struction, where  the  terms  of  it  are 
unambiguous ;  nor  is  the  fact  that 
the  testator  did  not  foresee  all  the 
consequences  of  his  disposition,  a 
reason  for  varying  it;  but,  where  the 
intention  is  obscured  by  conflicting 
expressions,  it  is  to  be  sought  rather 
in  a  rational  and  consistent,  than  an 
irrational  and  inconsistent  purpose. 
XIV.  That  the  rules  of  construction 
cannot  be  strained  to  bring  a  devise 
within  the  rules  of  law;  but  it  seems 
that,   where   the   will   admits   of   two 


619 


492 


LAW    OF   WILLS. 


[part  VI. 


practical  application  may  in  this  country  appear  doubtful,  and  they 
anticipate  certain  matters  whose  discussion  we  defer  to  later 
chapters. 


constructions,  that  is  to  be  preferred 
which  will  render  it  valid;  and  there- 
fore the  court,  in  one  instance,  ad- 
hered to  the  literal  language  of  the 
testator;  though  it  was  highly  prob- 
able that  he  had  written  a  word  by 
mistake  for  one  which  would  have 
rendered  the  devise  void.  XV.  That 
favor  or  disfavor  to  the  object  ought 
not  to  influence  the  construction. 
XVI.  That  words,  in  general,  are  to 
be  taken  in  their  ordinary  and  gram- 
matical sense,  unless  a  clear  inten- 
tion to  use  them  in  another  can  be 
collected,  and  that  other  can  be  as- 
certained; and  they  are,  in  all  cases, 
to  receive  a  construction  which  will 
give  to  every  expression  some  effect, 
rather  than  one  that  will  render  any 
of  the  expressions  inoperative;  and 
of  two  modes  of  construction,  that  is 
to  be  preferred  which  will  prevent  a 
total  intestacy.  XVII.  That,  where  a 
testator  uses  technical  words,  he  is 
presumed  to  employ  them  in  their 
legal  sense,  unless  the  context  clearly 
indicates  the  contrary.  XVIII.  That 
words,  occurring  more  than  once  in 
a  will,  shall  be  presumed  to  be  used 
always  in  the  same  sense,  unless  a 
contrary  intention  appear  by  the 
context,  or  unless  the  words  be  ap- 
plied to  a  different  subject.  And,  on 
the  same  principle,  where  a  testator 
uses  an  additional  word  or  phrase, 
lie  must  be  presumed  to  have  an  ad- 
ditional moaning.  XIX.  That  words 
and  limitations  may  be  transposed, 
supplied,  or  rejected,  where  war- 
ranted by  the  immediate  context,    or 


the  general  scheme  of  the  will;  but 
not  merely  on  a  conjectural  hy- 
pothesis of  the  testator's  intention, 
however  reasonable,  in  opposition  to 
the  plain  and  obvious  sense  of  the 
language  of  the  instrument.  XX. 
That  words  which  it  is  obvious  are 
miswritten  (as  dying  loith  issue,  for 
dying  without  issue)  may  be  cor- 
rected. XXI.  That  the  construction 
is  not  to  be  varied  by  events  subse- 
quent to  the  execution ;  but  the 
courts,  in  determining  the  meaning' 
of  particular  expressions,  will  look  to 
possible  circumstances,  in  which  they 
might  have  been  called  upon  to  affix 
a  signification  to  them.  XXII.  That 
several  independent  devises,  not  gram- 
matically connected,  or  united  by  the 
expression  of  a  common  purpose, 
must  be  construed  separately,  and 
without  relation  to  each  other;  al- 
though it  may  be  conjectured,  from 
similarity  of  relationship,  or  other 
such  circumstances,  that  the  te.stator 
had  the  same  intention  in  regard  to 
both.  There  must  be  an  apparent  de- 
sign to  connect  them.  XXIII.  That 
wliere  a  testator's  intention  cannot 
operate  to  its  full  extent,  it  shall  take 
effect  as  far  as  possible.  XXIV.  Tliat 
a  testator  is  rather  to  be  presumed 
to  calculate  on  the  dispositions  in  his 
will  taking  effect,  than  the  contrary; 
and  accordingly,  a  provision  for  the 
death  of  devisees  will  not  be  consid- 
ered as  intended  to  provide  exclu- 
sivly  for  lapse,  if  it  admits  of  any 
other   construction. 


620 


CHAP.  I.] 


GENERAL  KULES   OF  CONSTRUCTION. 


§  492a 


§  492a.  Proceedings  to  obtain  Construction  of  Will. 

Proceedings  for  obtaining  the  construction  of  a  will,  but  not  to 
reform  it,  are  usually  by  bill  in  equity  (irrespective  of  ampler 
statute  provisions),  and  such  proceedings  are  not  entertained  be- 
fore a  real  necessity  arises,  nor  unless  instituted  or  submitted  by 
parties  duly  interested;  usually,  however,  by  an  executor  or  trus- 
tee claiming  under  the  will.*  Courts  of  probate,  as  suoh,  have  no 
inherent  jurisdiction  to  construe  a  will.^ 


4.  See  102  Mich.  510,  61  N.  W.  7; 
63  Conn.  S99,  27  A.  585;  109  Ala. 
457,  19  So.  810.  Costs  or  fees  are  not 
usually  allowed  to  the  losing  claim- 
ant in  a  suit  for  construction.  Kim- 
ball V.  Bible  Society,  65  N.  H.  140, 
23  A.  83.  But  see  (1897)  2  Ch.  407; 
Kendall  v.  Taylor,  92  N.  E.  562,  245 
111.    617    (will    dubiously   expressed). 

See,  further,  Williamson  v.  Grider, 
135  S.  W.  361,  97  Ark.  588  (testa- 
mentary trustee)  ;  Parker  v.  Cobe, 
94  N.  E.  47,  208  Mass.  260  (parties 
not  affected)  ;  Pingrey  v.  Rulon,  92 
N.  E.  592,  246  111.  109  (limit  of  such 
jurisdiction)  ;  127  N.  W.  1002,  143 
Wis.  325;  Russell  v.  Hartley,  78  A. 
320,  83  Conn.  654  (whether  executor 
a  party)  ;  96  N.  E.  1073,  252  111.  522 


(whether  remedy  exists  at  law  or  es- 
tate is  purely  legal)  ;  Archambault's 
Estate,  81  A.  313,  232  Penn.  334  (no 
advice  without  litigants).  And  see 
Beall  V.  Wilson,  143  S.  W.  55,  14S 
Ky.  646  (appellants)  ;  Huston  v. 
Dodge,  87  A.  888,  111  Me.  246. 

5.  Skeiff  V.  Bohall,  138  S.  W.  461, 
99  Ark.  339   (real  estate). 

But  local  statute  sometimes  gives 
such  probate  misdiction,  with  a  riglit 
of  appeal.  See  144  Mass.  135,  59  Am. 
Rep.  65,  10  N.  E.  758. 

A  court  is  not  bound  to  construe  a 
will  on  the  application  merely  of  a 
party  hostile  to  it.  Glover  v.  Baker, 
83  A.  916,  76  N.  H.  393.  See  124  P. 
409,  87  Kan.  381. 


621 


§    494  LAW    OF    WILLS.  [PAET    VI. 

CHAPTER  II. 

DETAILS    OF    TESTAMENTAUY    COXSTEUCTION. 

§  493.  Details  to  be  considered;  as  to  the  Property  described 
in  the  Will;  Modern  Legislation,  etc. 

In  this  chapter  we  proceed  to  apply  the  general  principles  of 
testamentary  construction  to  wills  in  their  manifold  details.  And 
first  of  all  let  us  consider  the  property  described  in  a  will  and 
included  under  its  provisions.  Such  descriptions  may  relate  to 
real  estate  or  to  personal  estate,  or  to  one's  property  generally. 

It  should  be  first  observed,  however,  that  legislation,  both  in 
England  and  certain  of  our  States,  fixes  to  some  extent,  at  this 
day,  the  local  rule  of  construction,  on  certain  points  to  be  here  con- 
sidered ;  and  the  policy  in  many  States  is  now  to  apply  the  same 
general  construction  to  real  and  personal  property,  as  far  as  pos- 
sible, discarding  the  ancient  artificial  distinctions  between  those 
two  kinds.^ 

§  494.   Descriptions  relating  to  Real  Estate:  Leaseholds. 

A  devise  of  one's  "  real  estate  "  relates,  strictly  speaking,  to  free- 
holds so  as  to  exclude  the  idea  of  chattels  real  and  leaseholds.  And 
the  old  rule  of  construction  gave  the  same  exclusive  effect  where 
the  term  "  land  "  or  "  lands  and  tenements  "  or  "  lands,  tenements 
and  hereditaments  "  was  employed  in  a  will.  Any  such  descrip- 
tion was  held  prima  facie  to  mean  freeholds  only,  and  leaseholds 
were  excluded.^  This  rule  equally  applied  whether  the  devise  was 
of  all  one's  lands,  etc.,  or  of  lands  under  a  limited  description ;  as 
of  "'  all  my  lands  in  the  to^vn  of  B."  ^ 

But  this  presumption  of  interest  was  overcome,  where  at  the 
time  of  devise  the  testator  had  no  freehold  lands  answering  to  the 
description,  but  leaseholds  or  chattels  real  only.*    And  where  lease- 

1.  See  §   474a,  3.  lb.;  Hawkins  Wills,  30-32. 

2.  Cro.  Car.  293;  Swift  v.  Swift,  4.  Cro.  Car.  293;  Thompson  v.  Law- 
1    Do  G.   F.   &  J.    160;    Thompson    v.      ley,   supra. 

Lawley,  2  B.  &  P.  303. 

C22 


CHAP.    II.]       DETAILS   OF  TESTAMENTARY    CONSTRUCTIOlSr.  §    495 

hold  property  was  blended  in  situation  and  enjoyment  with  free- 
holds, or  an  intention  to  carry  leaseholds  was  otherwise  inferable 
from  the  context,  the  construction  yielded  accordingly ;  ^  and  lease- 
holds might  thus  pass  even  under  a  devise  of  "  real  estate."  ® 

By  the  Statute  1  Vict.  c.  26  the  presumption  is  reversed,  so 
that  in  modern  England,  a  devise  of  one's  lands,  or  his  lands  in 
a  specified  place,  shall  include  leaseholds  prima  facie  as  well  as 
freeholds.^  Corresponding  enactments  may  be  found  in  some  parts 
of  the  United  States ;  ^  but  neither  legislature  nor  court  has  given 
the  subject  much  attention  in  this  country.^  One  may  make  a 
valid  devise  of  land  under  a  residuary  clause  of  his  will  without 
particularly  identifying  the  land.  ^ 

"  Unimproved  "  real  estate  is  to  be  distinguished  from  that 
with  dwellings  or  other  buildings  upon  it,  such  as  is  called  "  im- 
proved "  real  estate.^ 

§  495.  The  Same  Subject:    Trust  Estates  and  Mortgages. 

It  has  been  presumed  that  a  general  devise  of  one's  lands  or  real 
estate  was  intended  to  embrace  land  which  the  testator  held  as 
trustee  or  mortgagee ;  ^  and  that  in  such  case  the  persons  who  suffer 
injury  thereby  must  obtain  satisfaction  .out  of  the  decedent's 
estate.^ 

But  if  the  will  disclosed  a  purpose  inconsistent  with  applying 
to  such  devise  property  of  which  the  testator  was  not  beneficial 

5.  Hobson  v.  Blackburn,  1  M.  &  K.  spected.  Chase  v.  Stockett,  73  Md. 
571.  235,  19  A.  761. 

6.  Swift  V.  Swift,  1  De  G.  F.  &  J.  1.  Lumber  Co.  v.  Rogers,  145  Mo. 
160.     See  Lane's   Estate,    140    N.    Y.  445,  46  S.  W.   1079. 

S.  602   (gift  of  a  deed  merely).  2.  Robb  v.  Robb,  173  Penn.  St.  620, 

7.  Stat.  1  Vict.  c.  26,  §  26    (1837).       34  A.  237. 

See  Appx.;  28  Ch.  D.  66;  Knight  Re,  3.    Braybroke    v.    Inskip,     8      Ves. 

34  Ch.  D.  518.  435;       Jackson       v.       Delancy.       13 

8.  Hawkins  Wills,  32,  Swords'  Johns.  554,  7  Am.  Dec.  403;  Wills  v. 
note.  Cooper,      1      Dutch.     161;     Heath    v. 

9.  The  express  reservation  of  a  de-  Knapp,  4  Penn.  St.  228;  4  Kent  Com. 
vise  in  such  particulars  must    be    re-      538,    539. 

4.    1   Jarm.   698. 
623 


§  496 


LAW    OF    WILLS. 


[PAET    VI. 


owner,  such  a  presumption  does  not  arise.^  As  where  the  property 
is  devised  to  trustees  to  sell,  or  with  a  charge  of  some  sort  imposed 
upon  it ;  or  where  the  devise  is  encumbered  with  limitations.®  And 
though  a  general  devise  should  pass  whatever  legal  estate  under  a 
mortgage  the  testator  had  to  transmit,  it  would  not  include  the 
beneficial  enjoyment  of  money  secured  by  the  mortgage,  since  that 
is  personal  estate.^ 

§  496.  The  Same  Subject;  Reversionary  Interests,  etc. 

Under  a  general  devise  of  one's  land  or  real  estate,  all  reversion- 
ary interests  will  pass  unless  a  clear  intention  to  exclude  the  same 
be  shown.* 


5.  Martin  v.  Laverton,  L.  R.  9  Eq. 
570;  Hawkins  Wills,  35;  1  Jarm. 
Wills,  689  et  seq.;  Brown  Re,  3  Ch. 
D.  156.  See  Gibbes  v.  Holmes,  10 
Rich.  Eq.  484;  3  Desau.  346;  Carter 
Re,  (1900)  1  Ch.  801  (intent  re- 
garded) . 

6.  Hawkins  Wills,  35-37;  Morley 
Re,  10  Hare,  293 ;  Rackham  v.  Siddall, 
16  Sim.  297;  8  Ves.  436;  1  Jarm. 
697,  698;  Packman  Re,  1  Gh.  D.  214. 
Where  such  a  devise  would  be  in  de- 
reliction of  the  testator's  duty,  no 
such  presumption  will  avail.  Wills 
V.  Cooper,  1  Dutch.  161;  2  Edw.  Ch. 
547;    35   S.  C.  423. 

7.  Woodhouse  v.  Meredith,  1  Mer. 
450.  A  gift  of  all  the  testator's  right, 
title,  and  interest  in  land  held  by  him 
as  mortgagee  is  a  gift  of  personalty 
only,  and  passes  no  title  in  the  land. 
Martin  v.  Smith,  124  Mass.  111.  Here 
the  mortgagor  was  executor  of  the 
■will  of  tho  mortgagee,  and  charged 
him.self  with  the  amount  of  the  mort- 
gage debt  as  assets  in  his  hands, 
thereby  operating  a  payment  of  the 
debt  and  a  discharge  of  the  mortgage. 
It  seems  common  sense  in  these  days 


that  a  devise  of  land  shall  not  carry 
a  money  right  with  mortgage  secur- 
ity, since  this  is  personal  property. 
See  50  N.  J.  Eq.  547. 

"All  my  real  estate "  in  a  certain 
town,  under  the  modern  ruie  ot  after- 
acquired  property  (§  486),  will  pass 
a  piece  of  land  there  acquired  after- 
wards by  the  testator  in  foreclosing 
a  mortgage  which  he  acquired  subse- 
quently. Dickerson's  Appeal,  55 
Conn.  223,  15  A.  99.  And  see  69  Conn. 
416,  38  A.  219.  But  the  specific  de- 
vise of  a  freehold  does  not  pass  a 
mortgage  taken  back  by  the  testator 
upon  a  sale  of  the  land  subsequent  to 
making  the  will.  Clowes  Re,  (1893) 
1  Ch.  214. 

8.  Tennent  v.  Tennent,  1  Jo.  &  Lat. 
389;  Church  v.  Mundy,  15  Ves.  396; 
Hayden  v.  Stoughton,  5  Pick.  538; 
Brown  v.  Boyd,  9  W.  &  S.  128. 

If  one  devises  "  lands  not  herein- 
before disposed  of,"  or  "  lands  not 
settled,"  etc.,  the  consecjuence  is  sim- 
ilar. Hawkins  Wills,  34,  citing  Jones 
v.  Skinner,  5  L.  J.  Ch.  N.  S.  87;  3 
P.  Wms.  56.  See  Gully  v.  Neville,  55 
So.   289    (property  "accruing"). 


C24 


CHAP.    II.]       DETAILS   OF  TESTAMENTARY   CONSTRUCTION.  §    498 

§  497.  The  Same  Subject:  Lands  contracted  for. 

Lands  which  the  testator  has  contracted  to  purchase  pass  prima 
facie  under  a  general  devise,  though  not  actually  conveyed  to  him.' 
As  for  lands  which  the  testator  has  contracted  to  sell,  the  legal  title 
thereto  is  presumed  to  vest  in  his  devisee,  as  though  by  way  of 
transferring  what  the  testator  held  in  trust;  but  not  in  general  so 
as  to  give  such  devisee  the  beneficial  enjoyment  of  the  purchase- 
money.^ 

§  498.  The  Same  Subject :  "  Land  " ;  "  Tenement  " ;  "  Heredita- 
ment." 

The  word  "  land  "  is  a  term  which  comprehends  any  ground, 
soil,  or  earth  whatever;  and  having  an  indefinite  extent,  upward 
as  well  as  downward,  it  naturally  includes  all  houses  or  buildings 
standing  or  built  on  it,  besides  mines,  wells,  and  whatever  else  the 
soil  may  hold  between  its  surface  and  the  earth's  centre.^  The 
word  "  land  "  receives  generally  its  broadest  sense  where  a  will  is 
interpreted;  and  yet  not  independently  of  the  testator's  apparent 
intent.  Thus  a  devise  of  land  covers  usually  the  house  standing 
upon  it;  but  not  where  the  context  shows  that  the  house  itself  or 
that  part  of  the  land  on  which  the  house  stands  was  devised  differ- 
ently.^ And  again,  one  might  devise  lands  with  express  reserva- 
tion as  to  mines  or  a  well  contained  therein. 

"  Land  "  is  not  so  broad  a  term  as  "  tenements  "  and  "  heredita- 
ments " ;  for  these  include  every  species  of  realty,  corporeal  or 
incorporeal,  that  may  be  holden  or  inherited.^     Hence  advowsons, 

9.    Acherley    v.     Vernon,    10    Mod.  during  his  life.   Atwood  v.  Weems,  99 

518;   CoUison  v.  Girling,  4  My.  &  Cr.  U.   S.    183,   25   L.   Ed.   471;    Covey    v. 

75.  Dinsmoor,    80    N.    E.    998,    226     111. 

1.   See     Hawkins     Wills,     38,    39-,  438      (unpaid     note    of     purchaser); 

Drant  v.  Vause,  1  Y.  &  C.  C.  C.  580;    1  Beemer  v.  Beemer,  96  N.  E.  1058,  252 

J.  &  W.  479.    A  testator  who  has  the  III.  453. 

legal  title  to  lands  which  he  has  sold  2.  Co.  Lit.  4a;   3  Kent.  Com.  378; 

l>y   a   written   contract,   can   transfer  1  Jarm.  Wills,  777. 
by    his    wijl    both    the    title   and    the  3.  Heydon's  Will,  2  And.  123;  Cro. 

notes   given   for  the   purchase-money;  El.  476,  658. 

!ind  the   devisee  will    stand    toward.?  4.   Bouv.  Diet.  "Tenements,"  "  He- 

the  purchaser  just  as  the  testator  did  reditaments  ";    3  Kent  Com.   401. 
40                                     625 


§  500  LAW  OF  WILLS.  [PAET  VL 

tithes,  etc.,  which  pass  under  these  broader  terms  might  not  where 
merely  land  is  devised.''  Yet  here  again  a  testator's  intention  con- 
trols ;  ^  and  in  some  American  States,  moreover,  "  land  "  has  been 
defined  as  including  tenements  and  hereditaments.' 

§  499.  The   Same   Subject :    "  Messuage  " ;   "Premises." 

"  Messuage  "  is  a  term  somewhat  antiquated,  which  =eems  how- 
ever to  mean  nearly  the  same  as  dwelling-house ;  ^  and  opinions  have 
sometimes  differed  as  to  whether  a  garden  comes  properly  under 
this  word,  as  well  as  the  curtilage  or  enclosed  space  immediately 
around  the  dwelling,  which  is  a  more  essential  incident.^ 

The  word  "  premises,"  which  literally  denotes  that  which  is  al- 
ready stated,  should  depend  for  its  breadth  upon  the  expression  to 
which  it  refers.-^  But  long  association  has  given  the  word  an  in- 
dependent sense  synonymous  with  land  or  house;  and  this  sense 
is  respected  by  courts  of  construction.^ 

§  500.  The  Same  Subject:    "House,"  "Mill,"  etc. 

The  grant  or  devise  of  a  house  will  carry  the  land  on  which  the 

5.  1  Jarm.  Wills,  777;  11  H.  L.  8.  Bouv.  Diet.  "Messuage."  The 
Cas.  375.  word  is  said  to  include  a  church.   lb.; 

6.  lb.;   Styles,  261;   2  Leon,  41.  11  Co.  26;   8  B.  &  C.  25. 

7.  1  Washb.  Real  Prop.  9.  For  the  9.  In  modern  times  the  disposition 
force  of  the  context  in  determining  the  is  to  regard  the  garden,  and  the  or- 
meaning,  where  leases  are  concerned,  chard  too,  as  part  and  parcel  either 
see  supra,  §  494.  As  to  passing  copy-  of  a  "  house  "  or  a  "  messuage."  Cro. 
holds,  see  31  Ch.  D.  314.  "Wild  and  El.  89;  2  Saund.  400;  1  Jarm.  Wills, 
forest  lands  "  defined  in  Newcombe  v.  778.  But  land  beyond  a  homestead  or 
Ostrander,  125  N.  Y.  S.  1133.  And  see  orchard  is  not  usually  carried  by 
Powell  V.  Beebe,  133  N.  W.  8,  167  cither  word.  lb.  And  see  next  sec- 
Mich.  306   (government  survey)  ;  Gib-  tion. 

son  V.  Gibson,  76  S.  E.  980,  93  S.  C.  1.    Bouv.      Diet.      "Premises";      1 

385    (taxed  land).  Jarm.   778;    Biddulph    v.    Meakin,    1 

As  to  the  interest  given  under  the  East,  456. 

will,    neither     "  tenement,"     nor     the  lb. ;    Heming    v.     Willets,   7    C.    B. 

broader     expression     "  hereditament,"  709. 

has  any  peculiar  force,  independently  2.   1   Jarm.   Wills,   779-781;    Rogers 

of  otlier  circumstances  to  pass  a  fee.  v.  Smith,  4  Penn.  St.  93;  Whitney  V. 

See  Wright  v.  Denn,   10  Wlioat.  204,  Olney,  3  Mason,  280. 
238,  6  L.  Ed.   303. 

G2G 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    500 

honso  is  built ;  and  ''  house,"  like  "  messuage,"  thus  imports  all  the 
land  within  the  curtilage,  without  any  mention  of  "  appurten- 
ances." "  Dwelling-house,"  as  a  place  for  one's  abode,  is  a  more 
specific  term;  and  as  for  "cottage,"  modem  usage  assigns  the 
sense  of  a  sanall  dwelling-house,  with  more  or  less  land  annexed, 
though  Lord  Coke  defined  it  for  his  times  as  a  little  house  with  no 
land  at  all ;  ^  while  "  mansion  house  "  or  "  palace,"  as  something 
more  pretentious  than  either  of  these,  conveys  the  idea  of  pleasure 
grounds  annexed  and  a  fine  approach  to  the  edifice.* 

But  whatever  word  of  this  description  may  be  employed,  a  de- 
vise of  the  house  will  be  presumed  to  carry  that  which  is  accessory 
and  needful  for  its  beneficial  use  and  enjoyment,  and  no  more ; 
admitting,  though  we  must,  that  a  devise  deserves  a  more  flexible 
interpretation  than  a  grant.  House  is  synonymous,  or  nearly  so, 
with  messuage ;  and  stables,  outhouses,  and  yard,  garden,  and  or- 
chard, are  prima  facie  included,  so  as  to  enable  the  devisee  to  con- 
veniently enjoy  the  grounds  and  keep  up  the  style  of  living  at  the 
homestead  as  before.^  But  the  devise  of  a  house  does  not  include 
all  that  the  occupier  may  find  it  convenient  to  occupy  with  it ;  nor 
are  adjacent  lands  or  lots,  with  buildings  on  them  which  tenants 
occupied  when  the  will  was  made,  prima  facie  included  under  such 
a  devise,  for  the  sake  of  the  rents  and  profits.®  Erections,  too,  for 
business  and  trade  are  distinguished  from  those  for  domestic 
purposes  in  such  a  connection.  Nevertheless  each  will  stand  by 
its  own  intent  as  manifested  by  its  whole  tenor;  and  while  words 
of  reservation  or  some  other  gift  may  curtail  the  devise  in  one  case, 
an  obvious  desire  to  confer  as  beneficial  an  enjoyment  as  possible 
and  to  leave  no  part  of  one's  estate  undisposed  of,  may  in  another 
extend  the  devise  beyond  its  more  literal  import;  and  a  compari- 

3.  Co.  Lit.  56  b.  See  2  B.  &  Ad.  780;  Clements  v.  Collins,  2  T.  R.  468. 
638.  See  146  Mass.  373,  15  N.  E.  899. 

4.  Lombe  v.  Stougliton.  18  L.  J.  Ch.  6.  Steele  y.  Midland  R.,  L.  R.,  1 
400.  Ch.  275;  Brown  v.  Saltonstall,  3  Met. 

5.  L.  R.  1  Ch.  275;   1  Jarm.  Wills,  423.    Cf.  Blackborn  v.  Edgley,    1    P. 

Wms.  600. 

627 


§    501  LAW    OF    WILLS.  [PART    VI. 

son  of  language  in  other  parts  of  the  will  may  aid  in  either  case  to 
resolve  the  doubt.' 

Again,  if  one  should  devise  a  certain  "  mill/'  "  factory,"  ^'  store," 
"  warehouse,"  or  other  building  for  business  purposes,  not  only 
would  the  building  itself  pass  by  force  of  the  descriptive  word, 
but  such  land  under  and  adjoining  it,  besides,  and  such  accompany- 
ing privileges  as  its  beneficial  use  and  enjoyment  rendered  neces- 
sary.* 

§  501.  The   Same   Subject:   "Appurtenances"  and  Similar  Ex- 
pressions, 

To  make  the  description  still  more  complete,  a  devise  speaks 
sometimes  of  a  house  (or  mill,  etc.)  "  with  its  appurtenances," 
with  all  the  lands  "  appertaining  thereto  "  or  "  thereunto  belong- 
ing," or  "  thereto  adjoining,"  or  some  similar  expression.  Such 
terms  seem  tO'  intimate  that  the  testator  meant  that  a  generous 
effect  should  be  given  to  his  devise ;  but  to  speak  strictly,  land 
cannot  be  appurtenant  to  a  house  or  other  land ;  ^  and  "  appurten- 
ances," though  certainly  aiding  to  give  the  devisee  whatever  a  com- 
modious and  beneficial  enjoyment  of  the  premises  may  require, 
cannot  safely  be  said  to  give  more  than  though  the  expression  itself 
had  been  omitted.^  For  appurtenances  are  things  which  pass  as 
incident  to  the  principal  thing;  and  if  the  house  be  conveyed  or  de- 
vised, whatever  is  incident  goes  naturally  with  it.^ 

7.  Under  the  devise  of  a  "  barn,"  factories,  see  Nye  v.  Hoyle,  120  N. 
land  enough  passes  to  complete  its  en-      Y.  195,  24  N.  E.  1. 

joyment,  and  no  more.    Bennet  v.  Bit-  9.  Co.  Lit.  121  b;   6  Bing.  161. 

tie,  4  Rawlc,  .339;   48  S.  C.  408.      As  1.  1  Jarm.  Wills,  781,  782.  Grounds 

to     "homestead"      (aside     from     its  of    doubtful    incident    to     the     house 

more    technical    moaning     under     our  may   thus   be   carried.     Cro.    El.    113. 

local  statutes),  see  14  Iowa,  73.   And  But  not  adjacent  lands  which  the  tes- 

for    the   devise    of   "  house    and    lot,"  tator  had  treated  as  a  separate  tract, 

see  37  N.  J.  Eq.  482.  1   B.  &  P.  53;    16  M.  <k  W.  494,    per 

8.  Whitney  v.  Olney,  3  Mason,  280;  Parke,  B.;  Smith  v.  Ridgway,  L.  R. 
4    Kdw.   Ch.  545;    Blaine  v.  Chamber,  1  Ex.  46. 

1  S.  &  R.  169.   As  to  a  riparian  own-  2.      See      Bouv.     Diet.       "Appurte- 

er's   devise  of  "all   my   water    privi-      nances";  Story.  J.,  in  Whitney  v.  01- 
legcs,"   together    with   lii.s   mills     and      ney,    3    Mason,    280.     But    land    may 

G28 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY    CONSTEUCTIOISr.  §    502 

Blit  courts  have  distinguished  between  a  house  "  and  its  ap- 
purtenances," and  a  house  "  with  the  lands  appertaining  thereto," 
inasmuch  as  the  latter  expression  implies  at  least  that  some  lands 
are  intended ;  ^  and  so  with  the  less  technical  term,  "  thereunto 
belonging."  *  The  phrase  "'  thereunto  adjoining  "  seems  to  suggest 
the  idea  of  carrying  a  contiguous  tract  or  tracts  of  land,  and  thus 
in  fact  have  courts  construed  its  meaning.^ 

§  502.  Devise  of  a  "  Farm/'  "  Freehold,"  "  Home,"  etc. 

''  Farm  "  in  English  law,  meant  originally  the  rent  reserved  on 
a  lease,  but  extended  in  sense  to  the  leasehold  interest,  or  even  the 
land  itself,  which  was  let  to  farm  or  rent.  Farmers  did  not  own 
the  land  they  cultivated,  but  leased  it  from  the  landlord  in  large 
tracts,  paying  a  yearly  rent.  Hence  in  modem  times  the  word 
"'  farmer  "  means  commonly  an  agriculturist  or  tiller  of  the  soil, 
while  a  farm  is  the  tract  used  for  agricultural  purposes,  such  as 
raising  stock,  fruit,  grain,  and  vegetables.  In  England  farms  are 
more  commonly  rented  to  this  day ;  but  in  the  United  States  most 
farmers  are  their  own  landlords ;  and  "  farm  "  has  oome  to  mean 
in  both  countries  a  tract  devoted  to  agriculture,  whether  owned 
by  the  cultivator  or  not.^ 

The  devise  of  a  farm  in  modem  times  will  pass  a  messuage, 
arable  land,  meadow,  pasture,  wood,  etc.,  together  with  the  farm- 
house and  outbuildings;  and  the  word  "  farm  "  may  pass  a  free- 
pass  under  the  term  "  appurtenances"  included)  ;  Davis  v.  Tremain,  126  N. 
in  a  will,  to  give  eflfect  to  the  inten-      Y.  S.  43. 

tion.    Otis  V.  Smith,  9  Pick.  293.    See  3.   Plowd.    170  a;    Cro.   Car.    57;     1 

12  Pick.  436.  As  to  the  bequest  of  a      Jarni.  782. 

shot-tower,  etc.,  "with  all  the  appur-  4.   1  Bing.  483;   2  B.  &  Ad.  680;    1 

tenances,"   in  carrying  a  quantity  of      Jarm.   783. 

unmanfactured  materials  in  the  build-  5.  Josh  v.  Josh.  5  C.  B.  N.  S.  454.  For 

ing,  see  Sparks's  Appeal,  89  Penn.  St.      irrigation    company   stock   as   an   ap- 
148,    33    Am.    Rep.     740.      See,     also,      purtenance,   see   Thomas's   Estate,    81 
Davis  v.  Tremain,  129  N.  Y.  S.  1119.      P.    539,   147   Cal.   236. 
See  Gorton  Pew  Co.  v.  Tolman,  97  N.  6.  2   Bl.   Com.   17,  42;    Bouv.   Diet. 

E.  54,  210  Mass.  402   (a  right  of  way      "  Farm";    and    see    Aldrich    v.    (ias- 

kill,   10  Cush.  155. 

629 


§    503  LAW    OF    WILLS.  [pART    VI. 

liold,  if  such  appears  to  be  the  testator's  intent.''  A  devise  of  a 
"  farm  "  may  even  include  outlying  tracts  which  were  commonly 
known  as  a  part  of  it  ^  or  portions  not  under  cultivation.^ 

A  "  home  "  or  "  homestead  "  applies  naturally  to  the  place  of 
family  residence  and  to  no  land  distinct  and  separate  from  it.^ 

§  503.  Devise  of  "  Rents  and  Profits  " ;  "  Use  and  Occupation," 
"  Income,"  etc, 

A  devise  of  the  "  rents  and  profits  "  of  land  has  from  the  days 
of  Coke  been  considered  as  passing  prima  facie  the  land  itself, 
since  by  the  old  feudal  rule  the  whole  beneficial  interest  of  land 
consisted  in  taking  rents  and  profits.^  And  the  same  holds  true 
where  the  "  income  "  of  lands  is  devised."  Such  a  devise  without 
words  of  inheritance  added,  carried  prima  facie  a  life  estate  only ; 
but  under  the  Statute  of  Victoria,  a  fee  simple  rather  is  presumed, 
or  at  least  the  whole  interest  which  the  testator  had  power  to  dis- 
pose of.*  But  no  such  construction  of  a  fee  can  avail  in  violation 
of  the  testator's  true  intention.^ 

Where  one  devises  the  "  use  and  occupation  "  or  the  "  free  use  " 

7.  Co.  Litt.  3  a;  Shep.  Touch.  93;  2.  Co.  Lit.  4  b;  2  B.  &  Ad.  42; 
Belasyse  v.  Luean,  9  East,  448;  1  Blann  v.  Bell,  2  D.  M.  &  G.  781;  1 
Jarm.  Wills,  785;  Griscom  v.  Evens,  Jarm.  Wills,  797;  Sammis  v.  Sam- 
40  N.  J.  L.  402.  "Freehold  farm  and  mis,  14  R.  I.  123;  2  B.  &  Ad.  30; 
lands "   may    pass     copyholds,   where  Hawk.  Wills,  120. 

there  is  no  residuary  devise.    31   Cli.  3.  Mannox  v.  Greener,  L.  R.  14  Eq. 

D.   314.  456;    Earl   v.   Rowe,   35   Me.   414,    58 

8.  Gafney  v.  Kenison,  64  N.  H.  Am.  Dec.  714;  90  Me.  463,  38  A.  365; 
354,  10  A.  706.  Ryan  v.  Allen,  120  111.  648,  12  N.  E. 

9.  61   So.   852,   132   La.   Ann.   865;  65. 

154  S.  W.  378,  153  Ky.  44.  4.   See  1  Vict.  c.  26.   §   28;   Hodson 

1.  McGehee   v.   McGehee,    74    Miss.  v.    Ball,    14    Sim.    571;        Mannox    v. 

386,   21  So.  2;   Smith  v.  Dennis,   163  Greener,  supra;   1  Jarm.   Wills,   791. 

111.  631,  45  N.  E.  267;   McKeough  v.  Cf.   Collier  v.   Grimesey,   36  Ohio   St. 

McKeough,     69    Vt.     34,    41,     37    A.  17. 

275;  Moore  v.  Powell,  95  Va.  258,  28  5.   Bowen  v.   Payton,   14  R.  I.  257; 

S.  E.  172.     As  to  "  upland,"  see  115  Skinner  v.  Spann,  93  N.  E.  1061,  175 

Ala.  328,  22  So.  154.      As  to  "  barn,"  Ind.  672. 
spo  §  500.     And  see  Seal  Re,  (1894)   1 
Ch.  316;  57  A.  114.  76  Conn.  459. 

630 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    504 

of  land,  a  right  to  let  or  assign  the  interest  is  implied,  and  not 
personal  use  and  occupation  alone,  unless  the  context  imposes  the 
narrower  construction.^  And  where  land  is  specifically  devised, 
rents  accrued  at  the  testator's  death  do  not  follow  the  land,  but 
go  rather  to  the  residuum  of  the  estate.^ 

It  is  a  familiar  and  well  settled  rule  of  construction  that  a  gift 
of  the  income  of  real  estate  is  a  gift  of  the  real  estate  itself.  A 
gift  of  the  income  of  realty  for  life  is  a  gift  of  the  life  estate,  while 
a  gift  of  the  perpetual  or  unrestrained  income  is  a  gift  of  the  fee.* 

§  504.  Descriptions    relating    to    Personal    Property ;    "  Mort- 
gages " ;  "  Securities  for  Money,"  etc. 

After  much  controversy  it  has  been  settled  in  the  English  courts 
that  land  held  by  the  testator  in  security  will  pass  by  the  words 
"  mortgages  "  or  "  securities  for  money,"  and  similar  expressions, 
so  as  to  give  not  only  the  land  but  the  entire  benefit  of  the  mortgage 
security,  to  the  person  designated  in  the  will,  unless  a  contrary  in- 
tent appear ;  on  the  broad  principle  that  the  testator  meant  to  sub- 
stitute the  object  of  the  bounty  in  his  own  place  as  mortgagee,  and 
give  him  the  full  power  to  enforce  the  mortgage.^  iN'or  is  this  con- 
struction to  be  affected  by  terms  descriptive  of  personal  estate  only, 
and  by  limitations  or  charges  such  as  simply  affect  property  of  that 
character.-^  Thus  the  legal  estate  in  a  mortgage  will  pass  under 
the  term  "  securities  for  money,"  although  the  bequest  is  made 
subject  to  the  pa\Tiient  of  debts  and  legacies  or  in  trust  for  sale ;  ^ 

6.  1  Saund.  181;  4  T.  R.  177;  371;  Hawkins  Wills,  48.  And  see 
Hawk.  Wills,  119;   4  Jur.  N.  S.  199;       Carter  Re,  (1900;   1  Ch.  801. 

1    Jarm.    798;    Wilson    v.    Curtis,    90  1.    lb.    Money   secured   by   a   niort- 

Me.  463,  38  A.  365.  gage   of   land   in   fee   is   in   substance 

7.  Parker  v.  Chestnutt,  80  Ga.  12.  personal  property,  and  a  gift  of  a 
See  §  523;  Spencer  v.  Adams,  97  mortgage  security  for  money  is  a  gift 
N.  E.  743,  211  Mass.  291  (real  estate  of  all  the  testator's  interest  in  both 
and  its  accumulations).  money  and  security;  hence  the  fee  of 

8.  Wilson  V,  Curtis,  90  Me.  463,  38  the  land  is  carried.  Renvoize  v. 
A.  365.    Cf.  §  507  as  to  personalty.  Cooper,  6  Mad.  371. 

9.  1  Jarm.  Wills,  699,  and  cases  2.  2  K.  &  J.  503;  Barber,  Ex  parte, 
cited;   King's  Mortgage  Re,  5  De    G.  5  Sim.  451. 

&  S.  644;  Renvoize  v.  Cooper,  6  Mad. 

631 


§    505  LAW    or    WILLS.  [rAKT    VI. 

though  under  a  devise  of  "  lands,"  as  we  have  seen,  such  restric- 
tions would  have  prevented  the  legal  estate  from  passing.^ 

The  meaning  of  such  words  is  aifected  as  usual  by  the  construc- 
tion of  the  particular  will. 

A  bequest  of  "  securities  for  money  "  will  not  pass  shares  in  a 
stock  company  organized  under  English  laws,  nor  perhaps  in  our 
American  sense ;  for  stock  is  a  sort  of  incorporeal  chattel  of  a  diff- 
erent description,  and  a  certificate  of  shares  is  not  a  security\  ISTor 
does  a  bequest  of  "  money  and  securities  for  money  "  carry  a  debt 
which  is  unsecured.^  But  to  this  word  "  security  "  present  usage 
gives  a  generous  scope  far  beyond  its  literal  meaning;  and  bills 
of  exchange,  bonds,  public  and  private,  and  judgments  have  thus 
passed  under  a  will,  not  to  mention  mortgage  notes,  or  property 
held  in  pledge.® 

§  505.  The    Same    Subject :    Gift    of    "  Money "    or    "Moneys," 
"Cash/'  etc. 

The  word  "  money  "  is  often  used,  by  the  uneducated  at  least, 
in  a  vague  but  extensive  colloquial  sense,  as  though  to  embrace  all 
of  one's  personal  property,  and  not  gold  and  silver  coin  and  paper 
currency  alone.  A  bequest  of  "  money  "  standing  by  itself  will 
not  be  presumed  to  carry  bills  of  exchange,  promissory  notes,  bonds, 
mortgages,  stock,  or  other  muniments  in  the  nature  of  incorporeal 
chattels  or  securities  payable  in  money.''     Not  even  public  stocks 

3.  Supra,  §  495.  See  Weed  v.  Hoge,  Gift  of  securities  in  a  vault  does 
83  A.  636,  85  Conn.  490.  not    presumably    include    bank    books 

4.  Ogle  V.  Knipe,  L.  R.  8  Eq.  434 ;  there  or  checks  uncashed.  Lyon  v. 
21  L.  J.  Ch.  843.  Deposit  Co.,  87  A.  1089,  120  Md.  514. 

5.  Mason's  Will  Re,  34  Beav.  498.  7.  Hotham  v.  Sutton,  15  Ves.  327; 
And  see  1  Schoul.  Pers.  Prop.  §§  Kay,  369;  Beatty  v.  Lalor,  15  N.  J. 
353,   375.  Eq.   108;    1  Jarm.  Wills,   768;     Haw- 

6.  L.  R.  8  Ex.  37;  3  De  J.  &  S.  kins  Wills,  49;  1  Schoul.  Pers.  Prop. 
577;  1  Jo.  &  Lat.  475;  2  Wms.  Exrs.  §  352;  2  Wms.  Exrs.  1189,  1190;  1 
1192.    So  as  to   money  due  under    a  Turn.  &  Russ.  272. 

vendor's    lien     for    unpaid    purchase-  As   to  money   and   its   legal   signifi- 

money.    Callow   v.   Callow,  42   Ch.   D.  cation,   see   2   Schoul.   Pers.   Prop.   Sdi 

550.    See  Stark's  Will,  134  N.  W.  389,  ed.   §§   335-352. 
149   Wis.   631. 

032 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY    CONSTRUCTION.  §    505 

are  properly  considered  "  money  "  under  such  a  gift.^  But  cui^ 
rent  bank  notes  on  band  and  suck  as  constitute  a  legal  tender  skould. 
be  included,  as  well  as  metal  money.^  As  for  money  not  on  band, 
but  in  the  kands  of  somebody  else,  tkere  is  some  question ;  and  de- 
spite Chief  Baron  Gilbert's  remark  that  "  money  is  a  genus  that 
comprehends  two  species,  viz.,  ready  money  and  money  due," 
neither  an  unpaid  legacy  nor  an  unpaid  debt,  secured  or  unsecured, 
from  a  third  party,  nor  any  other  unrealized  money  right,  will 
pass  prima  facie  aa  money.^  But  money  on  special  deposit  with 
another,  and  even  money  due  on  general  deposit  from  a  bank,  is 
favorably  regarded  as  passing  under  a  will ;  ^  while  as  to  a  savings- 
bank  deposit,  earning  interest  and  not  subject  to  check,  there  is 
some  conflict.'' 

But  that  vague  and  comprehensive  sense  of  which  the  word 
"  money  "  is  capable,  justifies  any  court  of  construction  in  giving 
a  much  wider  sense  to  this  word  when  reference  to  the  context 
shows  it  to  have  been  the  testator's  real  meaning.  And  accordingly 
the  general  residue  of  one's  whole  personal  estate  will  pass  under 
such  a  bequest,  wherever  a  just  consideration  of  the  whole  will 
and  the  circumstances  of  the  testator  requires  this  construction;^ 

8.  Hotham  v.   Sutton,   supra.  quest   of   "  debts."    I   Mer.   541   n;   2 

9.  Brooke   v.    Turner,    7    Sim.    071;       H.  L.  Cas.  31. 

Pohlnian  v.  Pohlman,  150  S.  W.  829,  4.  Cf.  Beatty  v.  Lalor,    supra,    and 

150  Ky.  679.  Dabney  v.  Cottrell,  9  Gratt.  580.  "All 

1.  Gilb.   Eq.   Rep.   200.  my   moneys     after     paying    my    just 

2.  Mason's  Will  Re.  34  Beav.  494;  debts"  may  pass  savings-bank  depos- 
4  K.  &  J.  426;  L.  R.  16  Eq.  475.  its  and  railroad  stock  under  a  will 
Money  to  be  paid  for  a  service  not  with  no  residuary  clause.  Fowler  v. 
completed  at  the  testator's  death,  or  Fowler,  63  N.  H.  244.  And  see  Decker 
payable  upon  some  contingency  not  v.  Decker,  121  111.  341,  12  N.  E.  750. 
determined,  does  not  pass  under  a  be-  "  Residue  of  my  money  "  is  construed 
quest  of  "money."  7  D.  M.  &  G.  55;  to  include  shares  of  stock  and  securi- 
3  Beav.  342.  tics   for  money    in   Smith  Re,   42   Ch. 

3.  7  D.  M.  &  G.  55;  Johns.  (Eng-  D.  302.  And  see  37  Ch.  D.  481,  97  Va. 
land)  49;  Parker  v.  Marchant,  1  434,  34  S.  E.  60;  86  A.  291,  238  Penn. 
Phill.  360;  Beatty  v.  Lalor.  2  MeCart.  440    ("stocks  on  interest"). 

110;    2   H.   L.   Cas.    31.    Money   at   a  5.  Rogers  v.  Thomas,  2  Keen,  8;   2 

bank  on  general  deposit  is  in  fact  a      Dru.  &  W.  51;   Prichard  v.  Prichard, 
"debt,"    and   may    pass    under    a   be-      L.   R.   11   Eq.   234;    Morton  v.   Perry., 

633 


§    505  LAW    OF    WILLS.  [PART    VI. 

as  when,  for  instance,  the  debts,  funeral  expenses,  and  legacies  are 
directed  to  be  paid  out  of  this  "  money ;"  or  a  complete  di>position 
would  be  impossible  under  the  narrow  interpretation.''  Even  pro- 
ceeds of  the  sale  of  land  have  been  carried  under  a  residuary  gift 
of  "  money ;"  ^  though  it  must  be  an  exceptional  use  of  such  a 
word  to  carry  literally  real  estate.*  And  once  more  the  context 
may  give  "  money  "  an  enlarged  sense,  yet  so  qualified  as  to  fall 
short  of  embracing  the  entire  r&sidue.^  The  true  criterion  is,  of 
course,  what  the  testator  appears  from  the  whole  will  to  have  in- 
tended.^ 

Other  terms  than  simply  "  money  "  are  often  used  in  this  con- 
nection. "  Money  due  to  me  "  implies  more  than  "  money ;"  and 
a  bequest  in  these  words  may  carry  an  unpaid  legacy  from  some 
other  estate,^  or  the  amount  payable  on  a  life  insurance  policy,^  or 
some  other  unpaid  debt  which  stands  due  at  the  testator's  death. 
"  Ready  money  "  and  "  cash,"  on  the  other  hand,  are  terms  so 
specific  as  to  require  a  stricter  interpretation  than  the  word 
''money"  by  itself;  and  yet  "ready  money"  (and  "cash"  too, 
as  it  seems)  may  include  cash  at  a  bank  on  current  account,  for  it 

1  Met.  469;   Smith  v.  Davis,  1  Grant,  8.  Sweet  v.  Burnett,  136  N.  Y.  204, 

158;   Fulkeron  v.  Chitty,  4  Jones  Eq.  32  N.  E.   628. 

244;    Paul   v.   Ball,   31   Tex.   10.    The  9.  1  Jarm.  Wills,  774.      Where,  for 

claim  on  an  unsatisfied  judgnient  may  Instance,   the   will   shows  that  public 

be   included    under    a    residuary    be-  stock  was  included;  or  accounts  with 

quest   of   "  all   the  money  I   have    or  various   persons   and   not   a   bank   ac- 

may  have  at  my  death,"  etc.    72  Tex.  count    alone.     26    Beav.    218;    6   Sim. 

224,  9  S.  W.  881.  67;    and   see  Paup    v.    Sylvester,    22 

6.  1    Jarm.    Wills,    769-773;    Legge  Iowa,  371. 

v.   Asgill,   cited   4    Russ.    369;    Waite  1.    Levy's     Estate,     161     Penn.     St. 

V.  Coombes,  5  De  G.  &  S.  676;   Mor-  189,  28  A.  1068.    And  see  81  A.  356, 

ton  V.   Perry,  supra;  Hawkins  Wills,  79  N.  J.  Eq.  120. 

51.    A  gift  of   the  "  balance    of    my  2.  Bainbridge  v.  Bainbridge,  9  Sim. 

money  "    is    sometimes    construed     in  16.   Otherwise  where  the  estate  out  of 

the  wills   of   ill-educated   persons,    as  which  the  legacy  is  payable  has  not 

importing  a  gift  of  all  the  residue  of  yet   been   got   in.    Martin   v.   Hobson, 

the   estate,    both    real    and    personal.  L.  R.  8  Ch.  401. 

Miller  Re,  48  Cal.   165,   17  Am.   Rep.  3.    Petty   v.    Willson,   L.    R.    4    Ch. 

422.  574.    Cf.   3   Beav.    342;     Delamater's 

7.  §  522.  Estate,  1   Whart.  362. 

634 


CHAP.    II.]       DETAILS   OF   TESTAAIEXTARY   CONSTRUCTIOX. 


JOG 


is  subject  to  the  depositor's  check  at  any  time.'*  "  Ready  money  " 
does  not,  however,  include  dividends  on  stock  uncollected  and  un- 
called for ;  ^  nor  debts  and  claims  generally,  whose  collection  is 
requisite  before  the  money  is  actually  in  hand  and  available. 
''  Cash  "  is  a  word  of  import  at  least  as  strict  as  "  ready  money;" 
and  so  is  "  money  in  hand."  ^ 

§  506.  The  Same  Subject:  "Movables;"  Personal  Property. 

As  mobility  is  the  leading  essential  quality  of  personal  as  con- 
trasted with  real  property,  "  movables  "  may  well  denote  corporeal 
"  personal  property  "  in  the  widest  sense  of  the  law.^  But  as  be- 
tween corporeal  and  incorporeal  personalty,  an  uncertain  stand  is 
taken  in  the  construction  of  wills ;  and  the  disposition  of  the  court 
appears  unfavorable  to  pass  incorporeal  or  intangible  personalty  by 
presumption,  or  at  least  debts  and  money  rights,  or  what  our  earlier 
law  denominated  the  chose  in  action.^ 


4.  Parker  v.  Marchant,  1  Phill.  356. 
"  Everybody  speaks  of  the  sum  which 
he  has  at  his  banker's,  as  money;  'my 
money  at  my  banker's '  is  a  usual 
mode  of  expression.  And  if  it  is 
money  at  the  banker's,  it  is  emphati- 
cally ready  money,  because  it  is 
placed  there  for  the  purpose  of  being 
ready  when  occasion  requires."  Per 
KJuriam  in  Parker  v.  Marchant.  ib. 
So,  we  may  add,  is  it  common  for  one 
to  speak  of  his  "  cash  in  bank,"  mean- 
ing what  he  can  use  as  cash;  and  a 
man  pays  one  bill  he  owes  in  coin 
or  current  notes,  and  another  by  a 
check  upon  his  bank. 

5.  May  v.  Grave,  3  De  G.  &  Sm. 
462. 

6.  "  Cash  "  or  "  money  in  hand " 
will  generally  pass  one's  money  on 
deposit  with  a  bank,  as  well  as  "ready 
money."  And  per  contra  will  not 
carry  a  promissory  note.  Beales  v. 
Crisford,  13  Sim.  592;  Johns.  49.  Nor 


money  deposited  by  another  in  trust 
for  the  testator.  Gough  Re,  134  N. 
Y.   S.   222. 

"  Picady  money "  has  under  pecu- 
liar circumstances  been  held  to  em- 
brace, for  the  husband's  benefit  under 
a  wife's  will,  the  money  he  had  col- 
lected for  her  by  her  authority  and 
expended  for  household  expenses;  all 
her  ready  monej-  "  in  bank  or  else- 
where "  being  bequeathed  to  him. 
Smith  V.  Burch,  92  N.  Y.  228. 

7.  1  Schoul.  Pers.  Prop.  3d  ed.  §§ 
3,  4. 

8.  Penniman  v.  French,  17  Pick. 
404,  28  Am.  Dec.  309;  Jackson  v. 
Vanderspreigle,  2  Dallas,  142;  Strong 
V.  White,  19  Conn.  238;  Ross  v.  Ross, 
79  S.  E.  343,  115  Va.  374.  See  Skin- 
ner V.  Spann,  93  N.  E.  1061,  175  Ind. 
372  (all  "personal  property"):  55 
So.  289  (all  "property");  77  A. 
450,  228  Penn.  248. 


635 


§     507  LAW    OF    WILLS.  [PART    VI. 

§  507.  The  Same  Subject:   Gift  of  Interest,  Income,  or  Produce 
of  Personalty;  Words  of  Inheritance. 

Where  the  gift  is  made  of  the  interest  or  produce  of  a  fund  to 
the  legatee  or  in  trust  for  him,  without  any  limitation  as  to  the 
term  of  enjoyment,  and  with  no  gift  over,  it  will  be  presumed  an 
absolute  gift  so  as  to  carry  the  principal  also,  even  tliough  no  men- 
tion be  made  of  the  principal.^  But  this  presumption,  like  others, 
may  be  controlled  by  the  context ;  and  that  which  is  given  as  a  life 
annuity  cannot  be  strained  by  construction  into  an  absolute  es- 
tate.^ A  life  estate  thus  given,  however,  is  not  to  be  regarded  as  a 
strict  annuity,  in  the  sense  that  no  apportionment  is  permitted  on 
the  death  of  the  life  beneficiary.^  In  short,  the  bequest  of  the  in- 
terest, income  or  produce  of  a  fund  to  one  and  his  heirs  forever, 
or  without  limit  as  to  continuance  or  time,  is  a  bequest  of  the 
corpus  of  the  fund  itself ;  and  this  effect  will  be  given  by  construc- 
tion, whether  the  gift  be  made  directly  to  the  legatee  or  through  a 
trustee's  intervention.^  This  holds  especially  true  where  the  will 
makes  no  gift  over,  for  a  partial  intestacy  should  not  be  presumed.* 
But  where  a  life  interest  only  is  intended,  the  gift  of  income  en- 
titles merely  to  a  life  estate  in  the  property.^ 

9.   2   Wms.   Exrs.   1194    and    cases  Eq.  450,  16  A.  1;  Cornwall  v.  Church, 

cited;    1   Bro.   C.   C.   532;    Mannox  v.  80  S.  E.  148. 

Greener,  L.  R.  14  Eq.  456;   Emery  v.  4.  Cases  supra;  Given  v.  Hilton,  95 

Wason,    107    Mass.    507;     132     Mass.  U.  S.  591,  24  L.  Ed.  458. 
473;     Stretch    v.     Watkins,   1   Madd.  5.   Hopkins  v.  Keazer,  89  Me.   347, 

253;    7   Sim.   178,   197.    An   indefinite  36  A.   615.    Cf.   §   503   as  to  a  devis( 

gift   of   dividends  gives   the    absolute  of    the    income,    etc.,    of    real    estate 

property  of  the  stock.    Page  v.  Leap-  And  see  118  Tenn.  325,  99  S.  W.  198 

ingwell,  18  Ves.  463;   3  Ohio  St.  369  ("income"    limited).        See,    further 

And  see  Hawk.  Wills,  123;   Hatch  v.  Hyde  v.  Rainey,  82  A.  781,  233  Penn. 

Bennett,  52  N.  Y.   359.  540;  135  N.  Y.  S.  1056   (statute);   82 

1.  2  Wms.  Exrs.  1195;  Blewitt  v.  A.  1108,  234  Ponn.  82;  Harteau  Re, 
Roberts,  1  Cr.  &  Ph.  274;  Hawk  97  N.  E.  726,  204  N.  Y.  292.  In  such 
Wills,  125;  McCune  v.  Baker,  155  a  case,  the  fund  upon  the  life  bene- 
I'enn.  St.  503,  26  A.  658.     See  §  610.  ficiary's  death   falls   into  the  residue. 

2.  Stone  v.  North,  41  Me.  265.  Wynn  v.  Bartlett,   167  Mass.  292,  45 

3.  Lorton  v.  Woodward,  5  Del.  Ch.  N.  E.  752. 
505;   Bishop  v.  McClelland,  44  N.  J. 

0)30 


CHAP.    II.]        DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    509 

§  508.  The  Same  Subject:    "Goods";  "Chattels." 

The  word  "  chattels,"  and  perhaps  the  word  "  goods,"  and  cer- 
tainly the  term  "  goods  and  chattels,"  in  a  will  should  be  presumed 
to  carry  the  whole  personal  estate  of  every  description,  if  unre- 
strained by  the  context,  including  corporeal  and  incorporeal  or  in- 
tangible property  of  the  nature  of  movables.^  But  while  choses  in 
action,  or  incorporeal  money  rights  are  embraced  under  this  de- 
scription, it  has  been  ruled  that  a  bequest  of  ''  goods  and  chattels  " 
■or  of  "  personal  property  "  in  a  certain  place  would  not  include 
choses  in  ^action,  because  these  have  no  locality  otherwise  than  by 
drawing  a  probate  jurisdiction  to  them.'  Context  and  the  circum- 
stances may  solve  the  testator's  intention  on  this  point  when  doubt 
or  difficulty  arises,  and  the  association  of  words  less  comprehensive 
may  confine  the  meaning  of  the  more  comprehensive.^ 

§  509.  Descriptions  relating  to  both  Realty  and  Personalty :  "  Ef- 
fects " ;  Possessions  " ;  "  Things." 

"  Effects  "  is  a  word  often  found  in  wills :  and  being  equivalent 
to  property  or  worldly  substance,  its  force  depends  greatly  upon 
the  association  of  the  adjectives  "  real "  and  "  personal."  "  Keal 
and  personal  effects  "  would  embrace  the  whole  estate ;  but  the 
word  "  effects  "  alone  must  be  confined  to  personal  estate  simply, 
unless  an  intention  appears  to  the  contrary.^     A  bequest  of  ''  all 

6.  Kendall  v.  Kendall,  4  Russ.  370;  less  a  different  intention  appears.  1 
1    Jarm.   Wills,   751;     2   Wms.   Exrs.      Yeates,  101.    See  §  509,  note. 

1178;    Moore  v.  Moore,   1   Bro.  C.   C.  9.  1  Sch.  Pers.  Prop.  §  16;   Hick  v. 

127.     The   word    "  chattels  "    includes  Dring,     2     M.    &    S.    448,    criticising 

animals  and  chattels  real,  but  "goods"  earlier  authorities;  Haw  v.  Earles,  15 

standing  by   itself  appears  less    com-  M.  &  W.  450. 

prehensive.     1    Sehoul.    Pers.   Prop.    §  But    the    context    may    show   that 

16.  real    estate    was    also    intended;     as 

7.  Moore  v.  Moore,  supra;  Brooke  where  the  testator,  referring  to  a  pre- 
V.  Turner,  7  Sim.  681;  Penniman  v.  vious  devise,  speaks  of  "my  said  ef- 
French,  17  Pick  404,  28  Am.  Dec.  309;  fects  "  or  directs  those  to  whom  his 
1  Wms.  Exrs.  1178.  '•  effects  "  are  given  to  pay  an  annu- 

8.  The  words  "  goods  or  movables  "  ity  out  of  his  real  and  personal  es- 
in  a  will  carry  bonds  and  money  un-  tate.    15  East,  394;  2  Jur.  610;  Haw- 

637 


§    510  LAW    OF    WILLS.  [PAKT    VI. 

my  effects  "  may  doubtless  be  so  controlled  by  associated  words 
and  the  context  and  surrounding  circumstances  as  to  fail  of  their 
full  natural  force:  ^  but  naturally  those  words  carry  the  whole  per- 
sonal estate." 

In  the  old  English  law  possession  and  seisin  were  distinguished ; 
the  latter  term  could  not  apply  to  an  estate  less  than  freehold,  but 
the  former  might.  Wbere  one  gives  his  "  possessions  "  by'  will, 
the  word  seems  applicable  prima  facie  to  both  real  and  personal 
property,  as  it  certainly  is  where  associated  words  and  the  context 
imply  such  am  intention.  But  the  word  "  possessions  "  is  seldom 
used  by  a  professional  draftsman;  and  whenever  used,  its  scope 
must  yield  to  the  testator's  probable  m(  aning.^ 

By  '•  things,"  as  opposed  in  law  to  the  word  "  persons,"  is  to 
be  understood  whatever  may  be  owned  of  subjects  not  human;* 
so  that  the  term  appears  a  comprehensive  one,  synonymous  with 
property  in  our  present  law.  But  some  cases  appear  to  have  given 
it  a  limited  sense  in  construction,  as  though  confined  to  the  tangi- 
ble and  not  extending  to  cJioses  in  action  where  the  bequest  is  of 
'^  all  things  "  in  a  particular  place.^ 

§  510.  The  Same  Subject:  "Estate";  "Property.^' 

The  word  "  estate  "  is  a  general  term,  and  in  modern  construc- 

kins  Wills,  55,  56;  Page  v.  Foust,  89  Ambl.  68.  Cf.  1  Sch.  &  Lef.  318,  a 
N.  C.  447.  decision  of  doubtful  authority  for  the 

1.  Ennis  v.  Smith,  14  How.  400,  14      present  day.     See  also  §  508. 

L.    Ed.    472.  Apart,     perhaps,     from       property 

2.  Hodgson  v.  Jex,  3  Ch.  D.  122.  purely  incorporeal  (or  intangible), 
"All  my  silver,  jewelry,  and  other  like  the  primitive  debt,  money  right, 
personal  effects "  does  not  include  or  chose  in  action,  it  seems  to  this 
valuable  railroad  stock,  as  against  a  writer  that  incorporeal  chattels  evi- 
residuary  legatee.  74  Ga.  124.  And  denced  by  muniment  or  security,  like 
see  §  514.  bonds,  promissory  notes,  chattel  mort- 

3.  Blaisdell  v.  Hight,  69  Me.  306,  gages,  savings-bank  books,  stock,  etc., 
31  Am.  Rep.  278;  Clark  v.  Hyman,  1  should  pass,  out  of  regard  to  the 
Dcv.   L.   382.  place   where   such   muniment   is  kept, 

4.  Bouv.  Diet.  "Things."  Arnold's  and  that  this  best  accords  with  a  tes- 
E.state,   87   A.   590,   240   Pcnn.   261.  tator's  natural  intention.    See  §   512, 

5.  Popham      v.      Lady     Aylesbury,  notes. 

638 


CHAP.    II.]       DETAILS   OF  TESTAMENTARY   CONSTRUCTION. 


511 


tion  may  be  said  to  embrace  prima  facie  the  whole  estate  of  tlie 
testator,  both  real  and  personal,  and  his  property  of  every  descrip- 
tion." And  the  same  may  be  said  of  ''  property,"  a  word  which 
comprehends  all  things  of  every  nature,  to  which  one  may  be  en- 
titled to  the  exclusion  of  others.^  But  in  many  of  the  older  cases 
the  disposition  shown  was  to  confine  "  estate  "  in  meaning  as  de- 
scriptive of  personal  property  only,  wherever  this  was  possible,  by 
which  means  the  heir-at-law  was  of  course  favored.^  Associated 
words  which  pertain  exclusively  to  personal  properly,  and  the  con- 
text generally,  may  of  course  indicate  that  the  tcrai  "  estate  "  or 
"  property  "  was  applied  in  the  narrower  sense  in  some  particular 
will.^ 

§  511.  The  Same  Subject:    Miscellaneous  Terms  of  Description. 

Wherever  a  will  purports  to  dispose  of  real  and  personal  prop- 


6.  1  Salk.  236;  Barnes  v.  Patch,  8 
Ves.  604;  O'Gorman's  Estate,  120  P. 
33,  161  Cal.  654  (all  assets);  Lath- 
rop  V.  Merrill,  92  N.  E.  1019,  207 
Mass.  6;  139  S.  VV.  858,  144  Ky.  678 
(property)  ;  Hamilton  v.  Hodsdon,  6 
Moo.  P.  C'  76;  138  N.  Y.  S.  194; 
Hunt  V.  Hunt,  4  Gray,  190;  Smith  v. 
Smith,  17  Gratt.  276;  32  Miss.  107; 
Archer  v.  Deneale,  1  Pet.  585,  7  L. 
Ed.  272;  Den  v.  Drew,  14  N.  J.  L. 
68;  Jackson  v.  Delancy,  11  Johns. 
365.  And  see  Given  v.  Hilton,  5  Otto, 
591,  24  L.  Ed.   458. 

7.  Bouv.  Diet.  "Property";  Spears 
Ch.  48;  5  Hayw.  104;  Rosetter  v. 
Simmons,  6  S.  &  R.  452;  Morris  v. 
Henderson,  37  Miss.  492;  Browne  v. 
Cogswell,  5  Allen,  364.  The  devise  or 
bequest  of  "  all  property  and  effects  " 
may  thus  embrace  real  estate  outside 
the  State  of  one's  domieil,  especially 
in  a  residuary  gift.  White  v.  Keller, 
68  Fed.  796;  Moore's  Estate,  88  A. 
432,   241   Penn.   253. 

8.  Hawkins  Wills,  54;     O'Toole    v. 


Browne,  3  E.  &  B.  572;  6  T.  R.  310. 

9.  See  e.  g.,  as  to  "  property," 
Brawley  v.  Collins,  88  N.  C.  605;  1 
Dev.  L.  382;  Wheeler  v.  Dunlap,  13 
B.  Mon.  291.  Equity  will  not  pre- 
sume the  devisor  meant  to  include  in 
a  devise  of  his  "  estate "  property 
which  in  equity  was  not  his  own.  2 
Bibb,  407.  As  to  carrying  community 
property,  see  Haley  v.  Gatewood,  74 
Tex.  281,  12  S  W.  25.  "  Loose  prop- 
erty," is  synonymous  with  "  mova- 
bles "  or  personal  property.  Fry  v. 
Shipley,   94   Tenn.   252,  29   S.   W.   6. 

The  word  "  estate  "  in  a  devise  is 
descriptive  of  the  subject  of  property, 
or  the  quantum  of  interest,  according 
to  the  context.  Hammond  v.  Ham- 
mond, 8  Gill  and  J.  436;  Jackson  v. 
Merrill,  6  .Johns.  185,  5  Am.  Dec.  213; 
Hart  V.  White,  26  Vt.  260; 

Under  a  bequest  of  "  all  ray  prop- 
erty of  every  description,"  money, 
choses  in  action,  and  chattels  incor- 
poreal as  well  as  corporeal  will  pass 
Hurdle  v.  Outlaw,  2  Jones  Eq.  75. 


639 


§    512  LAW    OF    WILLS.  [PAET    VI. 

ertj  in  the  same  terms  and  in  the  same  connection,  and  it  is  mani- 
fest that  the  testator  intended  both  to  go  together,  the  will  must  be 
so  construed/  And  in  various  instances  the  general  residue  of  a 
testator's  estate,  and  more  especially  of  personalty,  is  held  to  pass 
under  quite  informal  words  and  expressions,  from  which  a  suitable 
intent  may  be  gathered." 

In  short,  a  careful  study  of  the  decided  cases  will  show  not  only 
that  words  loosely  or  inaccurately  written  may  be  changed  in  con- 
struction from  their  meaning  as  they  stand,  so  that  terms  which 
literally  import  personalty  may  instead  be  taken  as  descriptive  of 
realty,^  or  vice  versa,  but  that  words  which  in  their  natural  sense 
are  applicable  exclusively  to  the  one  kind  of  property,  may  by  force 
of  the  context  be  held  to  include  the  other  also.*  Such  an  interpre- 
tation will  not,  however,  be  given  upon  doubtful  and  ambiguous 
expressions,  or  where  associated  words  give  a  contrary  import.^ 

§  512.  The  Same  Subject. 

The  cases  are  very  many  which  involve  the  description  of  par- 
ticular words  denoting  property ;  but  as  social  manners  change  and 
wills  are  liable  to  vary  incessantly,  both  as  to  the  use  and  force  of 
the  language  employed,  the  value  of  the  precedents  as  establishing 
rules  is  by  no  means  proportioned  to  their  number;  and  a  brief 
reference  in  the  foot-notes  may  serve  well  enough  our  present  pur- 
pose.^ 

1.  Ireland  v.  Parmenter,  48  Mich.  5.  Haw  v.  Earles,  15  M.  &  W.  450. 
631.  6.    In    2    Wras.    Exrs.    Pt.    III.    Bk. 

2.  1  Jarm.  Wills,  775;  Leigliton  v.  III.  c.  2,  American  edition  with  Per- 
Bailie,  3  M.  &  K.  267;  Bassett's  Es-  kins's  notes,  may  be  found  an  exten- 
tate  Re,  L.  R.  14  Eq.  54;  Singer  v.  sive  collection  of  precedents  in  point; 
Taylor,  133  P.  841,  90  Kan.  285.  "All  all  of  them,  however,  bending  to  the 
the  rest  "  may  pass  both  real  and  per-  apparent  sense  disclosed  by  the  tes- 
sonal  property.  Attree  v.  Attree,  L  tator  In  each  particular  case,  and  es- 
I'l.   11   Eq.   280.  ])ecially   restrained     in    gifts   not   re- 

3.  Doe  V.  Tofield,   11   East,  246;    3  siduary. 

Wms.  Exrs.  1079;   Evans  v.  Crosbie,  "Household   goods"   will   pass    all 

IT)  Sim.   600.  corporeal  chattels  of  a  permanent  na- 

4.  Williams  v.  McComb,  3  Ired.  Eq.  ture  and  not  consumed  in  their  use, 
4'>0;    18  Jur.  445.  that   are   used   in,   or   acquired   by,   a 

640 


CHAP,    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    513 

§  513.  Description  of  Gift;  Devise;  Legacy;  Bequest;  etc. 
We  may  add  that  while  a  devise  relates  in  strictness  to  lands/ 


testator  for  his  house,  and  contribute 
to  its  convenience  or  ornament,  a 
Wms.  Exrs.  1180,  1185;  1  Rop.  Leg. 
225;  Carnagy  v.  Woodcock,  2  M'unf. 
234;  Ambl.  611.  But  not  things 
which  happen  to  be  in  the  house  and 
are  even  useful  for  household  pur- 
poses, but  were  put  there  in  the  way 
of  trade;  as  700  beds  used  for  hos- 
pital purposes  under  a  contract  with 
the  government.  lb.;  Pratt  v.  Jack- 
son 1  Bro,  P.  C.  222.  Family  plate 
will  thus  pass,  if  in  actual  use.  2 
Wms.  1181.  But  not  articles  like 
wine,  malt,  and  victuals,  whose  use 
consists  in  their  consumption.  Shin- 
ning V.  Style,  3  P.  Wms.  334;  3  Ves. 
311.  Other  words  associated  with 
*■  household  furniture,"  may,  of 
course,  extend  or  restrict  the  sense. 
See  Dennett  v.  Hopkinson,  36  Me. 
350;  Ruffin  v.  Ruffin,  112  N.  C.  102, 
16  S.  E.  1021.  A  watch  carried  usu- 
ally on  the  person  does  not  pass  as 
"  household  furniture,"  nor  is  it 
"  wearing  apparel."  Gooch  v.  Gooch, 
33  Me.  535 ;  Sawyer  v.  Sawyer,  28  Vt. 
245.  "  Furniture ''  is  broadly  con- 
strued in  41  N.  J.  Eq.  93.  Whether 
it  includes  a  piano,  see  59  N.  H.  242. 
See,  also,  Chase  v.  Stockett,  72  Md. 
235,  240,  19  A.  761.,  where  china  and 
plated  ware  found  in  the  house  were 
held  to  be  included.  "  The  terms  '  fur- 
niture,' or  '  household  furniture,' 
when  not  associated  with  less  com- 
prehensive words,  embrace  everything 
in  the  house  that  has  usually  been 
enjoyed  therewith;  and  in  this  case 
would  have  passed  the  portraits  and 
silver  ware,  had  they  not  been  ex- 
pressly excepted."    lb.,  citing  various 


English  and  Amrican  authorities. 
Where  the  phrase  ''  personal  property 
and  furniture  "  occurs,  it  is  inferred 
that  the  testator  distinguished  be- 
tween them.  2  Dem.  (N.  Y.)  633. 
Household  furniture  and  portraits  are 
not  included  in  a  bequest  of  jewelry, 
wearing  apparel  and  "  personal  ef- 
fects." 173  Penn.  St.  368,  34  A.  58. 
"  Money  "  does  not  pass  as  "  house- 
hold furniture,"  though  contained  in 
a  secret  drawer  of  an  article  of  fur- 
niture. Smith  V.  Jewett,  40  N.  H. 
513.  Or  in  a  safe,  124  N.  Y.  388.  As 
to  books,  cf.  Kelly  v.  Powlet,  Ambl. 
611;  3  Ves.  311;  Ouseley  v,  Anstru- 
ther,  10  Beav.  462.  And  see  2  Wms. 
Exrs.  Am.  ed.  1181-1187,  and  Per- 
kins's notes.  It  is  obvious  that  an 
enumeration  of  some  of  the  specific 
things  which  the  testator  means  to 
bequeath  is  desirable  in  a  bequest  of 
this  character.  A  bequest  of  "  all  the 
household  property  in  the  dwelling- 
house  "  will  include  the  wood  and 
coal  there  and  a  shot-gun.  Frazer  Re, 
92  N.  Y.  239.  Under  "  articles  of  per- 
sonal use  and  ornament "  a  sailing 
yacht  is  not  embraced.  188  Penn.  St. 
33,  68  Am.  St.*  Rep.  847,  41  A.  448, 
49  L.  R.  A.  444.  Nor  are  incorporeal 
securities,  such  as  promissory  notes, 
included  presumablj'  in  a  bequest  of 
corporeal  chattels,  such  as  furniture. 
84  Me.  170,  24  A.  805;  63  Vt.  236. 
22   A.   600. 

In  one  case  a  will  gave  to  A  "  all 
my  household  effects,  books  and  pa- 
pers of  value,  and  everything  tho 
house  contains."  This  last  sweeping 
♦expression  was  treated  as  restrained 
by  the  words  preceding;   and   it  was 


41 


641 


§  513 


LAW    OF    WILLS. 


[PAET    VI. 


and  is  distinguisliable  from  what  is  bequeathed,  the  terms  "  de- 
vise and  bequeath "  are  often  conveniently  associated.     But,  in 


held  that  neither  a  note  of  $100,  nor 
a  savings-bank  deposit  evidenced  by 
a  book  found  with  the  note  among 
the  testator's  papers,  was  included. 
Webster  v.  Weirs,  51  Conn.  569.  See 
65  N.  Y.  S.  358;  Scoville  v.  Mason, 
57  A.  114,  76  Conn.   459. 

As  to  "  stock  on  farm,"  "  stock  in 
trade,"  "  plantation  stock,"  ''  plant 
and  good  will,"  &c.,  numerous  pre- 
cedents may  be  found;  and  wide  elTect 
is  given  to  the  testator's  intention  of 
passing  here  not  articles  of  domestic 
enjoyment  so  much  as  what  aids  in  car- 
rying on  the  business  pursuit  of  agri- 
culture or  trade.  See  1  Wms.  Exrs. 
1187,  1188,  and  Perkins's  notes;  3 
Atk.  64;  9  M.  &  W.  23;  4  Jones  Eq. 
203;  19  Tex.  553,  36  S.  E.  377.  Stock 
of  medicine,  &c.,  "  belonging  to  or 
contained  in  my  store,"  held  not  to 
include  whiskey  in  bond  upon  which 
excise  duty  had  not  been  paid.  58  Md. 
575.  For  a  devise  and  bequest  of  one 
farm  with  "  stock,  grain,  and  farm- 
ing utensils  "  to  A,  and  another  farm 
■with  "  stock  and  farming  utensils" 
to  B,  and  the  residue  of  the  estate 
to  C,  see  Baker  v.  Baker,  51  Wis. 
538,  8  N.  W.  289.  A  devise  of  per- 
sonal property  "  belonging  to  or  used 
in  connection  with "  the  farm,  etc., 
does  not  include  wheat  harvested  be- 
fore the  testator's  death  and  on  the 
farm  awaiting  the  market.  Kempf's 
Appeal,  53  Mich.  352,  19  N.  W.  31. 

"  Property  at  my  bank  "  is  held  to 
pass  a  cash  balance,  and  also  shares 
of  stock  in  the  bank's  custody  for 
collection  of  dividend.  Prater  Re,  37 
Ch.  D.  481.  See  Northrup's  Will,  87 
N.  Y.  S.  318   ("law  business,  books," 


etc.);  79  N.  E.  269,  193  Mass.  271 
( factory  products ) . 

To  carry  life-insurance  money  dif- 
ferently from  what  the  policies  con- 
template is  not  to  be  taken  by  im- 
plication as  a  testator's  intent. 
Blouin  V.  Phaneuf,  81  Me.  176,  16  A. 
540;  76  Tex.  293,  13  S.  W.  12.  Yet 
a  policy  payable  to  one's  legal  repre- 
sentatives may  be  disposed  of  by 
will.  See  Aveling  v.  Association,  73 
Mich.  7,  1  L.  R.  A.  528,  40  N.  W.  28. 

The  word  "  etc.,"  added  to  a  par- 
ticular enumeration  of  bequeathed  ar- 
ticles, does  not  carry  articles  of  a 
difl'erent  kind,  not  used  in  connection 
with    the    foregoing.     152   Mass.    353. 

A  bequest  of  a  bond  having  an 
overdue  coupon  attached,  at  testator's 
death,  carries  the  coupon  also.  Og- 
den  v.  Pattee,  149  Mass.  82,  14  Am. 
St.  Rep.  401,  21  N.  E.  227.  See  139 
S.  W.  968,  144  Ky.  794.  A  bequest 
of  bonds  in  general  will  carry  the 
coupons.  Sanborn  v.  Clough,  64  N". 
H.  315,   10  A.  678    (severed). 

Under  a  bequest  of  one's  "  debts  " 
may  pass  a  draft  in  the  testator's 
favor  and  a  cash  balance  at  his  ban- 
ker's. 1  Meriv.  541.  See,  also,  3 
Meriv.  434;  11  Ves.  356;  2  Wms. 
Exrs.    1198. 

A  bequest  of  a  bond,  note,  etc., 
bearing  interest  carries  the  in- 
terest due  thereon.  Perry  v.  Max- 
well, 2  Dev.  Eq.  448;  2  Keen, 
274;  13  C.  B.  205.  But  cf.  2  Atk. 
112;  Harvey  v.  Cooke,  4  Russ.   34. 

The  word  "  north  "  in  a  devise  may 
mean  northerly,  northeasterly,  or 
northwesterly.  Weare  v.  Weare,  59 
N.  H.  293.    And  see  71  Me.  596. 


042 


CHAP.    II.]        DETAILS   OF   TESTAMENTARY    CONSTEUCTION. 


il3 


furtherance  of  a  testator's  intent,  the  words  "  bequeath  "  and  "  de- 
vise " .  may  in  any  will  be  treated  as  synonymous,  if  the  context 


A  bequest  of  "  wearing  apparel," 
etc.,  and  "  jewelry,  contained  in  eight 
trunks  "  may  pass  jewelry  contained 
in  a  valise.  30  How.  Pr.  265.  "  Corn, 
fodder,  meat,  and  other  provisions  on 
hand,"  may  include  wine  and  brandy 
whicli  the  testator  had  provided  for 
his  own  use.  Mooney  v.  Evans,  6  Ired. 
Eq.  363.  And  see  Searle  v.  Fieles,  83 
N.  E.  901,  197  Mass.  343.  From  regard 
to  context,  railroad  and  State  bonds 
may  pass  under  the  description  of 
"  bank  stock."  Clark  v.  Atkins,  90 
N.  C.  629;  47  Am.  St.  Rep.  538,  113 
N.  W.  398,  113  Wis.  43.  A  bequest  of 
"  bank  stock "  will  carry  savings- 
bank  deposits,  the  testator  having  no 
bank  stock.  Tomlinson  v.  Bury,  145 
Mass.  346,  1  Am.  St.  Rep.  464,  14  N. 
E.  127.  As  to  "  shares,"  see  37  Ch.  D. 
683.  Live  stock,  such  as  animals, 
must  of  course  be  excluded  where  the 
bequest  plainly  was  of  "  stock "  in 
this  other  sense.  Capehart  v.  Burrus, 
122  N.  C.  119,  29  S.  E.  97.  See  82 
P.  549  ("books  and  papers"); 
(1905)  2  Ch.  55  ("pecuniary  in- 
vestment") ;  113  N.  W.  398,  133  Wis. 
43. 

The  gift  of  a  "  trunk  and  its  con- 
tents "  is  not  controlled  by  an  unat- 
tested paper  inside  the  trunk  direct- 
ing that  money  shall  be  used  for 
certain  purposes.  Magoohan's  Appeal, 
117  Penn.  St.  238,  2  Am.  St.  Rep.  660, 
14  A.  816.  Whether  a  savings-bank 
book  inside  would  be  thus  bequeathed, 
quaere.  lb.  In  an  English  case,  where 
the  old  objection  to  passing  choses 
in  action  was  discussed,  the  gift  of 
a  desk  with  its  contents  was  held  to 


carry  various  checks  and  promissory 
notes,  as  well  as  coin  and  bank  notes. 
Robson  Re,  2  Ch.  (1891)  559.  But 
a  key  found  inside  the  desk  gave  no 
title  to  a  box  of  securities  elsewhere, 
whicli  the  key  unlocked.  lb.  Nor  does 
the  gift  of  a  box  with  contents  oper- 
ate as  a  devise  of  real  estate  repre- 
sented by  a  deed  therein.  159  Mass. 
594,  38  Am.  St.  Rep.  465,  22  L.  R.  A. 
153,  35  N.  E.  94. 

As  to  "  amount,"  see  Garth  v. 
Garth,  139  Mo.  456,  41  S.  W.  238. 
"  Judge  of  probate "  is  presumed  to 
signify  the  "  court  of  probate." 
Allen's  Appeal,  69  Conn.  702,  38  A, 
701. 

See  further.  Wolf  v.  Schoeffner,  51 
Wis.  53,  8  N.  W.  8;  Edmondson  v. 
Bloomshire,  11  Wall.  383,  20  L.  Ed. 
44;  Parker  v.  Loan  Co.,  71  N.  E.  894, 
163  Ind.  303  (stock  at  its  par 
value)  ;  Mortimer  v.  Potter,  72  N.  E. 
817,  213  111.  178;  57  A.  114,  76 
Conn.  459  (scrip,  stock,  etc.)  ;  Drake 
V.  True,  56  A.  749,  72  N.  H.  322; 
Wheeler  Re,  (1904)  2  Ch.  66  ("ready 
money");  Lauman  v.  Foster,  135  N. 
W.  14  (stock  dividend)  ;  Coudon  v. 
Updegraff,  83  A.  145,  117  Md.  71 
(dividend  as  income)  ;  84  A.  629,  80 
N.  J.  Eq.  364  (income  gross  or  net)  ; 
56  So.  352,  129  La.  415  (annuity). 
Personal  property  may  be  aided  in  de- 
scription by  location.  Clarke  Re; 
(1904)  1  Ch.  294;  Blackmer  v. 
Blackmer,  63  Vt.  236,  22  A.  600 
(chattels  at  one's  dwelling). 

As  to  a  life  insurance  fund,  see 
Small  V.  Jose,  86  Me.  120. 

7.  Supra,  §  3. 


643 


§    514:  LAW    OF    WILLS.  [PAET    VI. 

requires  it;  ^  and  the  words  "devise,"  "legacy,"  and  "bequest" 
may  be  applied  indifferently  to  real  or  personal  property.^  Where, 
however,  the  testator  uses  words  in  their  technical  sense  that  sense 
must  of  course  prevail.^ 

§  514.  Description  of  Gift;  General  Terms  how  far  restrained 
by  particular  Enumeration. 

But  here  let  us  observe  generally  of  terms  which  describe  a  gift 
by  way  of  devise  or  bequest,  that  a  general  and  comprehensive 
term  such  as  "  effects,"  "  goods,"  "  chattels,"  may  be  restrained  in 
sense  to  less  than  their  natural  import  in  a  given  case  by  the  con- 
text and  associated  words  under  the  will.  For  it  is  a  rule  of  pre- 
sumption, especially  in  clauses  not  residuary,  that  where  a  more 
general  description  is  coupled  with  an  enumeration  of  things,  the 
description  shall  cover  only  things  of  the  same  kind ;  ^  and  doubt- 
less words  of  general  description  may  by  due  regard  to  the  context 
be  considered  as  limited  by  an  attempt  at  particular  description.^ 
Thus  a  bequest  ending  "  and  everything  the  house  contains  "  may 
be  restrained  in  effect  by  prior  words  detailing  the  kind  of  things.* 
And  so,  too,  where  a  previous  enumeration  of  such  articles  as  gold 

8.  Dow  V.  Dow,  36  Me.  211;  Brown  were  bailed  to  other  persons.  84  Me. 
V.  Taylor,  1  Burr,  268;  Thompson  v.  185.  This  is  a  rule  of  general  appli- 
Gaut,   14  Lea,   310.  cation    to    personal    property    of   any 

9.  Ladd  v.   Harvey,   21   N.  H.   514.  kind. 

"  Legatee  "  may  be  read  "  devisee  "  or  2.  Given  v.  Hilton,  5  Otto  591,  24 

"distributee,"    as    circumstances    re-  L.   Ed.  458;    Andrews  v.  Schoppe,   84 

quire.     15  Sim.  600,  23  Geo.  571.  Me.  170,  24  A.  805. 

1.  Hazclrig  v.  Hazelrig,  3  Dana,  3.  Allen  v.  White,  97  Mass.  504; 
48.  The  word  "  legacy  "  as  used  by  Urich's  Appeal,  86  Penn.  St.  386,  27 
way  of  reference  in  a  will  means  nat-  Am.  Rep.  707;  124  Mass.  Ill;  Free- 
urally  a  pecuniary  legacy,  and  not  man  v.  Coit,  96  N.  Y.  63 ;  supra,  § 
specific  gifts  bestowed  of  trifling  475,  30  Ch.  D.  92;  Bates  v.  Kings- 
value.  171  Mass  84,  50  N.  E.  512.  ley,  102  A.  306,  215  Mass.  62.  This 
As  to  a  certain  sum  of  money  to  be  rule  applies  to  either  real  or  personal 
divided,  at  a  time  stated  after  tes-  property  at  the  present  day.  See  An- 
tator's  death,  in  certain  stock,  see  170  drews  v.  Schoppe,  84  Me.  170,  24  A. 
Penn.  St.   177,  32  A.  626.  805,  and  cases  cited;    §  493. 

A  bequest  broadly  expressed,  of  all  4.  Webster  v.  Weirs,  51  Conn.  569. 
one's  animals  should   include  such  as 

644 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY    CONSTRUCTION.  §    514 

rings,  a  chest,  a  box,  is  followed  by  the  sweeping  clause  "  and  all 
things  not  before  bequeathed,"  the  court  has  excluded  a  leasehold 
right  from  the  bequeet.^  Hence  does  it  happen,  as  we  have  al- 
ready seen,  that  words  so  comprehensive  when  standing  alone  as 
"  effects,"  ''  goods,"  chattels,"  or  even  "  estate  "  or  ''  property," 
may  by  their  juxtaposition  with  words  less  broad  be  treated  as  re- 
strained within  narrower  limits ;  the  generic  being  controlled  by 
the  specific,  by  the  particulars  which  describe  the  property  in- 
tended.® 

Among  the  circumstances  which  bear  in  favor  of  reducing  the 
natural  scope  of  general  words  which  a  testator  uses  in  description 
are  these:  that  a  subsequent  specific  bequest  is  made  to  the  same 
legatee ;  ^  or  that  particular  dispositions  have  followed  in  favor  of 
other  persons ;  ^  or  that  the  clause  is  not  residuary  in  character ; 
or,  more  strongly  still,  that  explanatory  and  restrictive  expressions 
occur  afterwards  in  connection  with  the  gift.*  And  the  indisposi- 
tion of  courts  appears  strongest,  when  choses  in  action  or  incor- 
poreal personalty  (which  may  be  evidenced  in  mere  writing  to  a 
considerable  value),  or  even  money,  is  claimed,  where  the  par- 
ticular description  indicates  that  only  corporeal  cliattels  whose  in- 
trinsic worth  depends  upon  what  is  visible  and  tangible  were  in 
the  testator's  mind.^ 

But  this  rule  of  restraining  a  more  general  description  by  the 

5.  Cook  V.  Oakley,  1  P.  Wms.  302.  nature    and    kind    soever,    except    my 

6.  §  512,  note:  1  Jarm.  Wills  751;  gold  watch."  Critchon  v.  Symes,  3 
Peaslee  v.  Fletcher,  60  Vt.  188,  14  Atk.  61.  Where  "  etc."  follows  words 
A.   1.  of  particular  description,  things  ejus- 

7.  Rawling  v.  Jennings,  13  Ves.  39;  dem  generis  is  meant.  26  Beav.  220; 
Richardson  v.  Hall,  124  Mass.  228,  1  Barnaby  v.  Tassell,  L.  R.  11  Eq.  363; 
Johns.  Ch.  329.  Woodcock    v.    Woodcock,    152    Mass. 

8.  Wrench  v.  Jutting,  3  Beav.   521.  353,  25  N.  E.  612. 

9.  1  Jarm.  Wills  753,  754.  As  where  1.  Benton  v.  Benton,  63  N.  H.  289, 
the  will  says:  "  Whatever  I  shall  have  56  Am.  Rep.  512.  The  gift  of  the  in- 
at  my  death,  as  plate,  jewels,  linen,  come  of  stocks  and  bonds  implies 
household  goods,  coach  and  horses."  further  that  the  principal  is  not  given. 
Timewell  v.  Perkins,  2  Atk.  103.  Or  lb.  And  see  Reynolds  Re,  124 
"  goods,    wearing    apparel,    of    what  N.  Y.  388. 

645 


§  514  LAW  OF  WILLS.  [PAET  VL 

context  and  by  associated  words  of  narrower  import,  is  after  all 
but  a  rule  of  presumption,  as  we  should  bear  carefully  in  mind. 
It  yields  to  the  testator's  intent  as  gathered  from  the  whole  instru- 
ment.^ Thus,  if  a  will  in  its  general  description  purports  to  dis- 
pose of  all  the  personal  property,  or  of  all  the  property  real  and 
personal,  and  charges  the  legatee  with  the  payment  of  other  lega- 
cies, a  broad  residuary  gift  may  fairly  be  implied,  notwithstanding 
an  enumeration  of  particulars.^  And  so,  too,  where  the  enumera- 
tion of  particulars  seems  to  lead  up  to  a  sweeping  general  term 
which  is  added  by  way  of  embracing  whatever  remains  unmen- 
tioned,*  and  the  whole  effect  is  that  of  a  residuary  bequest.^  Nor 
is  it  essential  to  the  broader  construction  that  the  generic  term 
should  follow  the  specific,  for  there  may  be  a  general  term,  fol- 
lowed by  what  was  meant  to  be  an  enumeration  (as  under  a 
videlicet  or  "namely")  but  a  defective  one  in  particulars.^  A 
misdescription  of  the  particular  does  not  vitiate  the  correct  gen- 
eral description,^  And  Mr.  Jannan  considers  it  a  conclusive 
ground  in  favor  of  the  enlarged  sense  of  an  equivocal  gift,  that  the 
bequest  contains  an  exception  of  certain  things  which  would  not 
have  been  comprised  under  the  narrow  sense;  since  the  testator, 

2.  1  Jarm.  Wills,  755-758;  Ben-  eration  of  some  items  before  the 
nett  V.  Baclielor,  Bro.  C.  C.  29 ;  1  words  '  other  effects '  does  not  alter 
Russ.  276 ;  Martin  v.  Smith,  124  the  proper  meaning  of  those  words." 
Mass.  Ill;   Urich's  Appeal,  86  Penn.  Hodgson  v.  Jex,  2  Ch.  D.  122. 

St.    386,    27    Am.    Rep.    707;     supra,  5.  Taubenhan  v.  Dunz,  125  111.  524, 

§   475;    Given  v.  Hilton,   5   Otto   591,  17  N.  E.  456.     "All  my  cattle"  may 

24  L.  Ed.  458;   Andrews  v.   Schoppe,  be  restrained  by  construction  to  cat- 

84  Me.   170,  24  A.   805.  tie  used  merely  for  stock.     64  Tex.  22. 

3.  Chapman  v.  Chapman,  4  Ch.  D.  "  Ornaments "  from  the  context 
800.  may  include  articles  of  jewelry.     75 

4.  Campbell    v.    Prcscott,    15    Ves.  Cal.  189,  16  P.  774. 

50:;,  5  Mad.   69;   6  Mad.  119;   Arnold  6.  Fisher  v.  Hepburn.  14  Beav.  627; 

V.    Arnold,    2    My.    &    K.    365.      Lord  and  see  remarks  of  Romilly,  M.  R.,  in 

Cottonham's   statement   in   Arnold   v.  ib.     This  case  is  followed  in  Dean  v. 

Arnold  seems  to  be  generally  accepted  Gibson,   L.    R.   3   Eq.    717,   and   King 

by     the     later     English     authorities,  v.  George,  5  Ch.  D.  627. 

though  it  conflicts  with  some  earlier  7.  Martin  v.  Smith,  124  Mass.  Ill; 

cases;  namely,  that  "the  mere  enum-  Freeman  v.  Coit,  96  N.  Y.  63. 

G4G 


CHAP.    II.]       DETAILS   OF  TESTAMENTAKY   CONSTKUCTION'.  §    515 

hj  showing  that  without  this  exception  the  gift  would  have  included 
the  excepted  articles,  has  afforded  a  key  to  his  own  ambiguous 
meaning.^ 

In  fine,  courts  at  the  present  day  decline  to  be  hampered  by  any 
rule  which  would  sacrifice  the  testator's  true  meaning  out  of  undue 
regard  for  the  association  of  words  of  limited  scope  with  broad 
generic  terms;  and  the  modem  inclination  both  in  England  and 
America  is  to  treat  words  of  general  description  as  unlimited  in 
sense  by  an  attempt  to  state  particulars  where  the  will  as  a  whole 
discloses  no  intention  to  the  contrary ;  though  not  of  course  where 
that  favorable  presumption  is  overcome.* 

§  515.  The  Same  Subject. 

But  as  Mr.  Jarman  observes,  where  the  general  term  has  been 
treated  as  unrestrained  by  the  particular  enumeration,  there  was 
no  other  bequest  capable  of  operating  upon  the  general  residue  of 
the  testator's  estate  than  the  clause  in  question.^  Partial  intestacy 
under  a  will  is  a  conclusion  to  be  avoided  in  construction  if  pos- 
sible;^ but  where  such  an  alternative  is  needless,  inasmuch  as  an- 
other clause  in  the  will  contains  a  residuary  provision,  and  a  con- 
sistent and  effective  interpretation  of  the  testator's  whole  mean- 
ing is  thereby  given,  an  argument  arises  in  favor  of  restraining 
the  effect  of  the  doubtful  bequest.^ 

Property  which  is  devised  or  bequeathed  may  be  plainly 
enough  described,  although  reference  be  made  in  aid  of  the  de- 
scription to  some  other  document  which  cannot  be  found.'* 

8.  1  Jarm.  Wills,  756,  citing  in  the  notes  do  not  pass  in  addition  to 
point  Hotham  v.  Sutton,  15  Ves.  319.  the  sum,  but  as  a  part  of  it.  Henry 
This  question,  though  arising  usually  v.  Henry,  81  Ky.  342;  Pepper's  Estate, 
under  gifts  of  personalty  restricted  to  154  Penn.  St.  340,  35  A.  1063. 

a  certain   locality,   is  equally   applic-  1.  1  Jarm.  Wills,  760,  761. 

able    to    other   cases.      1    Jarm.    756.  2.  Supra,  §  490. 

See  Garth  v.  Garth,  139  Mo.  456.  3.  Woolcombe   v.   Woolcombe,    3   P. 

9.  See  supra,  §  475;  1  Jarm.  Wills,  Wms.  112;  2  D.  &  Wa.  59;  1  Jarm. 
759.  Wills   761;    Reynolds   Re,    124   N.   Y. 

Where    a    sum    of    money     is    be-      388. 
queathed,  "  including  "  all  notes,  etc.,  4.  Beckett  Re,  103  N.  Y.  167,  8  N. 

647 


§    516  LAW    or    WILLS.  [PAET    VI. 

§  516.  A  False  Description  does  not  vitiate,  etc. 

Latin  maxims  borrowed  from  the  civil  law  are  not  unfrequentlj 
iipplied  in  the  construction  of  a  devise.  One  of  these  maxims,  and 
a  familiar  one,  is  that  a  false  description  does  not  injure  f  that 
is  to  sav,  that  where  the  description  is  made  up  in  part  of  what 
is  true  and  in  part  of  what  is  false,  the  untrue  part  will  be  re- 
jected as  not  vitiating  the  devise,  if  the  part  which  is  true  describes 
the  subject  with  sufficient  certainty.®  The  description  so  far  as 
it  is  false  is  taken  to  apply  to  no  subject  at  all,  and  so  far  as 
it  is  true,  to  one  subject  only.'  This  maxim  must  be  taken  in 
furtherance  of  a  testator's  intention  and  not  to  subvert  it. 

For  instance,  where  one  plainly  identifies  the  premises  devised 
by  him,  and  yet  calls  them  "  freehold "  when  in  fact  they  are 
"  leasehold,"  or  vice  versa^  or  describes  the  house  as  tenanted  by 
A  when  it  was  tenanted  by  B,  or  purchased  of  A  when  it  was  pur- 
chased of  B ;  or  mentions  the  farm  he  gives  by  will  as  consisting 
of  about  130  acres  when  it  was  much  larger  or  much  smaller;* 
or  where  he  describes  a  lot  accurately  except  as  to  the  initial 
point  •,^  in  these  and  similar  instances  the  plain  identification  in  the 
main  of  what  is  devised  carries  the  property,  and  the  subordinate 
misdescription  which  is  superadded  may  be  thrown  out  in  con- 
struction as  surplusage.^  In  fact,  wherever  it  is  clear  that  the 
testator  intended   to  pass   specific  property  by  his  will,   it  will 

E.   506.     See  further.   190  N.  Y.  128,  Bear  v.  Bear,  1.3  Penn.  St.  529.     But 

82  N.  E.  1093;  Thomas  v.  Thomas,  82  where   there   are   devises   to   different 

N.  E.  236,  292  111.  277;   138  N.  Y.  S.  parties,   and   the   actual  quantity   in- 

194.  stead   of   that   described    would   have 

5.  Falsa  demonstratio  non  nocet  left  not  land  enough  to  satisfy  all 
cum  de  corpore  constat.  the    devises,    this    is    a    circumstance 

6.  1  Jarm.  Wills,  785.  which  bears  in  favor  of  the  more  lim- 

7.  Morrell  v.  Fisher,  4  Ex.  591,  per  ited      construction.        Tewksbury      v. 
Alderson,  B.     And  see  99  N.  E.  675,  French,  44  Mich.  100,  6  N.  W.  218. 
255  111.  365.  1.  Ehrman    v.    Hoskins,    67    Miss. 

8.  Day  v.  Trig,  1   P.  Wms.   286;   7  192,  19  Am.  St.  Eep.  297. 

M.  &  W.  1;   Cox  v.  Bennett,  L.  R.  6  2.  Cases   supra;   Emmert  v.   Hays, 

Eq.   422.  89   111.   11;    8   Or.   303,   34   Am.   "Rep. 

9.  Wliitfield  v.  Langdale,  1  Ch.  D.  581;  Wales  v.  Templeton,  83  Mich. 
CI;   .Aldrich  v.  Gaskill,  10  Cush.  155;  177,  47  N.  W.  238. 

G48 


CHAP.    II.]       DETAILS   OF   TESTAMENTAKY    CONSTETJCTION.  §    517 

pass  notwithstanding  a  misdescription  of  the  property,  so  long 
as  there  is  enough  correspondence  to  afford  the  means  of  identi- 
fying the  subject  of  the  gift.^ 

To  pursue  this  subject  farther.  A  gift  by  words  of  general  de- 
scription, we  have  seen,  is  not  to  be  limited  by  a  subsequent  at- 
tempt at  particular  description.'*  "  All  my  real  estate "  has 
accordingly  been  held  to  embrace  a  parcel  on  the  south  side  of  the 
street,  even  though  the  lands  were  described  as  though  all  situated 
on  the  north  side.^  And  there  are  cases  where  premises  are  do- 
scribed  as  occupied  by  B  when  B  manifestly  occupied  only  part 
thereof.^  In  short,  testing  such  questions  by  the  true  meaning  of 
the  will,  it  may  frequently  happen  that  an  estate  definitely  and 
fully  described,  may  have  some  particular  added  which  holds  good 
of  a  part  of  the  estate  only,  and  may  therefore  be  discarded  in 
construction.^  On  the  other  hand,  a  particular  misdescription 
cannot  enlarge  the  premises  whose  general  description  identifies  it 
plainly.^ 

§  517.  But  Particulars  may  qualify  a  General  Description, 

But  where,  on  the  other  hand,  there  is  a  clear  enumeration  of 
particulars  which  purport  on  their  face  to  be  designed  as  qualifica- 
tions of  a  preceding  general  description,  words  of  general  devise 
must  yield,  and  the  maxim  falsa  demonstratio  non  nocet  does  not 
apply  ;^  but  rather  the  maxim,  ex  praecedentibus  et  consequentibus 
optima  fiat  inter pretatio}     And  hence  of  two  adjoining  parcels 

8.  Woods  V.   Moore,   4   Sandf.   579;  8.  Tyrell  v.  Lyford,  4  M.  &  S.  550; 

Huffman   v.   Young,   170  111.   290,   49  1  Jarm.  Wills,  789.    See  also  99  S.  W. 

N.   E.   570.  1093,  301  Mo.  360;  84  A.  554,  118  Md. 

4.  Supra,  §§   475,  514,  515.  485;  Turner's  Will,  99  N.  E.  187,  206 

5.  Martin  v.  Smith,   124  Mass.   11.  N.  Y.   93;    115  P.   568.  84  Kan.   791; 

6.  Cro.  Car.  129.     Cf.  L.  R.  16  Eq.  95  N.  E.  141,  250  111.  297. 

177,  per  Lord  Slielborne.  9.  Griscom   v.    Evens,   40   N.   J.   L. 

7.  1  Jarm.  Wills,  786,  787;   1  M.  &  403;   Drew  v.  Drew,  28  N.  H.  489. 
Sel.    399;    Down   v.    Down,    7    Taunt.  1.  From   what   precedes   and   what 
343;    Drew  v.   Drew,   28   N.   H.   489;  follows,  we  must  gather  the  best  in- 
Stewart  v.  Stewart,  96  Iowa,  620,  65  terpretation.     And  see  §   514. 

N.  W.  976. 

649 


§    518  LAW    OF    WILLS.  [PAET    VI. 

it  may  appear  that  only  one  was  given.^  Nor  can  words  which 
describe  the  object  of  a  devise  be  discarded  as  false  demonstration 
unless  they  are  clearly  repugnant  to  other  descriptive  phrases  of 
more  importance.^ 

Where  a  devise  gives  the  area  and  also  describes  by  bounds,  it 
is  the  latter  description  which  controls.*  And  where  reference 
is  made  to  a  map  or  plan  which  is  on  public  record  for  a  descrip- 
tion of  the  property,  it  is  fair  that  the  boundaries  as  therein 
described  shall  control,  if  no  reason  appears  to  the  contrary.^  The 
same  parcel  of  land  may  be  described  in  a  will  by  one  or  more 
references*^ 

§  518.  Repugnant  Description;  Language  of  Will  not  to  be  sub- 
verted. 

Where  something  is  devised,  and  there  are  found  two  species 
of  property,  the  one  completely  corresponding  to  the  description, 
and  the  other  not  so  completely,  the  latter  will  be  excluded  while 
the  former  takes  eifect.^  And  generally,  in  case  of  a  discrepancy 
between  two  modes  of  description,  that  mode  will  be  followed 
which  is  the  less  liable  to  mistake.^ 

^Tiere,  finally,  the  will  clearly  purports  to  give  that  which 
the  testator  has  not,  the  court  refuses  to  subvert  its  language,  upon 
any  conjecture,  however  plausible,  that  something  of  quite  a  dif- 
ferent description  was  really  intended ;  nor  will  evidence  from 
without  be  admitted  to  show  that  what  is  not  ambiguously  ex- 
pressed meant  other  than  it  purports.^  Thus  where  a  testator 
having  lands  in  the  county  A,  devises  all  his  estates  in  county 
B,  where  he  has  nothing,  the  lands  in  the  former  county  will  not 

2.  Griscom  v.  Evens,  supra.  and  to  occupation  under  it.      115  N. 

3.  Evens   v.    Griscom,   42   N.   J.   L.      Y.  290,  22  N.  E.  219. 

579.  7.  Ryall  v.  Bell,  8  T.  R.  579,  4  M. 

4.  Lyon  v.  Lyon,  96  N.  C.  439.  &  S.  550;   1  Jarm.  791,  792;   Morrell 

5.  Finelite   v.    Sinnott,    125    N.    Y.      v.  Fisher,  4  Ex.  591. 

683,  25  N.  E.  1089.  8.  Redding   v.   Allen,    3    Jones   Eq. 

6.  As  by  reference  both  to  the  deed      358. 

9.  See  supra,   §   478. 

650 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY    CONSTRUCTION.       §    51  Sa 

pass  ;^  and  even  tliough  partial  intestacy  be  the  alternative,  the 
rule  is  not  changed.  But  an  effect  so  disastrous  is  sometimes 
avoided  by  striking  out  erroneous  particulars  where  there  remains 
sufficient  to  identify  the  property  with  reasonable  certainty.  Thus, 
where  the  will  devised  "  lots  1  and  2  in  block  187  "  when  the 
testator  owned  no  such  lots,  but  lots  3  and  4  in  that  block,  the 
property  was  treated  as  sufficiently  identified  by  "  block  187," 
after  rejecting  particulars  as  to  the  numbers  of  the  lots.^  If,  on 
the  whole,  real  estate  be  devised,  the  description  of  which  it  is  im- 
possible to  ascertain,  the  devise  must  fail.' 

§  518a.  Real  Estate  with  the  Personalty  thereon. 

Where  a  lot  is  devised  and  bequeathed  with  all  the  personal 
property  thereon,  it  passes  the  live  stock,  even  though  the  cattle 
sometimes  grazed  elsewhere.^  But  under  a  mere  devise  of  land 
and  the  buildings  thereon,  personal  property  stored  in  one  of  the 
buildings  does  not  presumably  pass;^  but  there  must  be  such  an 
actual  or  constructive  annexation  to  the  realty  as  complies  with 

1.  8  Bing.  244;  1  Jarm.  Wills,  795;  73  Wis.  445,  41  N.  W.  627.  See  §§ 
1  Mackey  (D.  C.)  468;  Sturgis  v.  592-594.  As  to  admitting  extrinsic 
Work,  122  Ind.  134,  17  Am.  St.  Rep.  evidence  of  the  testator's  intent  where 
345,  22  N.  E.  996.  the  description  was  partly  right,  cf. 

2.  Moreland  v.  Brady,  8  Or.  303,  34  §§  573,  574,  et.  seq.  The  distinctions 
Am.  Rep.  581.  See  also  Black  v.  run  in  the  cases  are  sometimes  very 
Richards,  95  Ind.  184.     But  cf.  Sher-  close. 

wood   V.    Sherwood,   45   Wis.    357,    30  3.  Edens   v.   Miller,    147    Ind.    208, 

Am.  Rep.  757,  which  appears  contra.  211,   40   N.   E.   526,   and   cases   cited. 

A  devise  of  "  my  house  and  lot  in  the  See  further,  228  111.  23,  81  N.  E.  787, 

town  of  Patoka,  Illinois,"  is  held  suf-  119  Am.  St.  Rep.  409;  95  N.  E.   141, 

ficiently  definite   in   Allen   v.   Bowen,  250  111.   297;    146  S.  W.   18,   148  Ky. 

105    111.    361.      And    see    Severson    v.  34;   92  N.  E.  601,  246  111.  76;  Taylor 

Severson,  68  Iowa  656.   But  the  devise  v.  Taylor,  93  N.  E.  9,  174  Ind.  870. 
of  a  farm  described  will  not  carry  a  4.  Martin     v.     Osborne,     85     Tenn. 

farm   elsewhere.      Christy   v.   Badger,  420,  3  S.  W.  647. 
71  Iowa  581,  32  N.  W.  513;  Bowen  v.  5.   Dana   v.   Burke,   62   N.    H.   627. 

Allen,  113  111.  53,  55  Am.  Rep.  398.  In  this  case  a  boat  was  stored  in   a 

The  direction  for  a  division  of  the  barn.    Nor  would  the  boat  pass  under 

testator's   land  may   be   void   for  un-  a    bequest     of     household     furniture, 

certainty  of  description.     Ehle's  Will,  lb.;  §  513. 

651 


§    519  LAW    OF    WILLS.  [PART    VI. 

the  law  of  fixtures  in  order  to  divest  a  chattel  of  that  original 
character.^  Where,  too,  in  the  clause  of  a  will  not  residuary,  real 
estate  is  specifically  devised  and  bequeathed,  with  all  its  lands, 
buildings,  and  appurtenances,  "  including  all  the  furniture  and 
personal  property  "  in  and  upon  the  same,  or  in  any  manner  con- 
nected with  it,  and  there  is  a  vault  upon  the  premises  which  con- 
tained various  incorporeal  kinds  of  personalty,  such  as  stocks  and 
bonds,  at  the  testator's  death,  such  securities  are  not  presumed  to 
be  included  but  go  rather  to  the  residuary  legatee.'^ 

§  519.  Residuary  Bequest  of  Personalty;  its  Effect. 

A  general  residuary  bequest  of  personal  property  operates  upon 
all  the  personal  estate  which  the  testator  may  have  at  his  death, 
and  prima  facie  carries  with  it  not  only  whatever  remains  undis- 
posed of  by  his  will,  but  whatever  despite  the  will  fails  of  disposi- 
tion in  the  event  from  one  cause  or  another.^  It  includes  in  con- 
s^uence  both  lapsed  and  void  legacies,  those  which  turn  out  void, 
and  those  which  fail  by  the  death  of  the  legatee  while  the  testator 
was  alive.^  For  a  presumption  (to  quote  from  Sir  Wm.  Grant) 
arises  in  favor  of  the  residuary  legatee  against  every  one  except  the 
particular  legatee,  since  a  testator  is  supposed  to  give  his  personalty 
•away  from  the  former  only  for  the  sake  of  the  latter.^  And  the 
English  precedents  require  strong  words  in  any  will  to  rebut  this 
presumption  in  favor  of  the  residue.^ 

6.  lb.  And  see,  generally,  as  to  fix-  392;  Drew  v.  Wakefield,  54  Me.  296; 
tures,   1  Sch.  Pers.  Prop.   §§   111-133.  Firth  v.   Denny,  2   Allen   471;    Wool- 

7.  Reynolds  Re,  124  N.  Y.  388  and  mer's  Estate,  3  Whart.  480;  4  Barb, 
cases  cited.     And  see  §§  514,  515.  90. 

8.  1  Jarm.  Wills,  645,  761;  Hawk-  1.  Cambridge  v.  Rous,  8  Ves.  25. 
ins  Wills,  40.  All  the  personal  prop-  2.  Bland  v.  Lamb,  2  J.  &  W.  406; 
erty  passes  to  the  widow  by  the  words  12  Jur.  547,  16  Ves.  451;  Clowes  v. 
"  all  the  personal  property  is  hers,"  Clowes,  9  Sim.  403 ;  Leake  v.  Rob- 
thoiigh  some  is  specifically  mentioned  inson,  supra.  Even  where  a  resi- 
as  bequeathed  to  her.  Risk's  Appeal,  duary  clause  gives  all  "  except "  cer- 
110  Penn.  St.  171,  1  A.  85.  tain   specific   legacies    (which   liappen 

9.  Brown  v.  Higgs,  4  Ves.  708;  2  to  fail)  or  "  not  already  disposed  of," 
Ves.  285;  Tindall  v.  Tindall,  23  N.  J.  tlie  courts  incline  to  favor  the  resi- 
Eq.   244;   Leake  v.   Robinson,   2   Mer.      duary  legatee  in  construction.    2  ColL 

652 


CHAP.    II.]       DETAILS   OP"   TESTAMENTARY   CONSTRUCTION.  §    519 

ISTevertheless,  this  strong  presumption  in  favor  of  the  residuary- 
legatee,  where  personalty  is  concerned,  is  liable  in  any  case  to  be 
rebutted,  like  any  other  presumption  in  testamentary  construction  ; 
and  where  the  will  shows  that  the  testator  meant  that  the  residuary 
gift  should  take  only  a  limited  effect,  that  meaning  must  operate.* 
Thus  there  may  be  an  express  reservation  against  the  residue  in 
language  not  to  be  mistaken.*  And  the  gift  of  residue  may  be  re- 
stricted by  the  context,  or  by  provisions  inconsistent  with  a  more 
liberal  construction.^  Moreover,  as  by  "  residue  "  we  mean  that 
which  is  only  disposed  of  effectually  in  the  residuary  clause,  any 
part  of  the  residue  which  itself  fails  does  not  prima  facie  swell  the 
remaining  part  of  the  residue,  but  goes  as  estate  undisposed  of.^ 
Where  legacies  are  given  to  several  legatees,  and  the  residue  is 
bequeathed  to  the  same  legatees,  it  follows  that  the  residue  will  not 
include  a  lapsed  legacy  to  one  of  them."  In  general,  the  compre- 
hensive import  of  the  word  "  residue  "  does  not  prima  facie  ex- 
tend to  a  gift  of  that  residue ;  for  a  gift  "  of  the  residue  "  of  the 
residue  of  one's  personal  estate  is,  in  fact,  a  gift  of  the  residue  of  a 
particular  fund.^ 

516;  10  Beav.  276;  1  Jarm.  Wills  762;  of  intention  as  before.     1  Jarm.  764; 

20  Beav.  579.  Evans  v.  Field,  8  L.  J.  N.  S.  264. 

3.  1  Jarm.  Wills.  762;  Hawkins  7.  Lombard  v.  Boyden,  5  Allen  251; 
Wills,  41.  Craigbead  v.  Given,  10  S.  &  R.  353. 

4.  Davers  v.  Dawes,  3  P.  Wms.  40;  8.  Hawkins  Wills,  43;  1  Sw.  566. 
Amb.  577;  Kay  507;  45  Minn.  48.  Thus,  if  the  testator  gives  £10,000  out 

5.  Ludlow  v.  Stevenson,  1  De  G.  &  of  the  residue  of  his  personal  estate 
J.  496;  Baker's  Appeal,  115  Penn.  to  A,  and  the  residue  to  B,  and  the 
St.  590,  8  A.  630.  bequest  to  A  fails,  the  gift  to  B  will 

6.  Hawkins  Wills,  41,  42;  Sykos  v.  not  generally  carry  this  £10,000  to 
Sykes,  L.  R.  4  Eq.  202;  Skipwith  v.  him,  but  the  sum  will  go  as  undis- 
Caball,  19  Gratt.  786;  1  Jarm.  764;  posed  of.  Green  v.  Pertwee,  5  Hare 
1  Sw.  566;  Humble  v.  Shore,  7  Hare  249:  1  Sm.  N.  S.  115;  White  v.  Fisk, 
247.  For,  should  a  residue  be  given  22  Conn.  35;  Beekman  v.  Bonsor,  23 
in  moieties,  to  hold  that  one  moiety  N.  Y.  312,  80  Am.  Dec.  269. 
lapsing  shall  accrue  to  the  other.  The  English  rule  under  the  Stat- 
would  be  to  hold  that  a  gift  of  the  ute  of  Victoria  regards  a  general  resi- 
^oiety  shall  eventually  carry  the  duary  bequest  as  including  not  only 
■whole.  Plumer,  M.  R.,  in  1  Sw.  566.  personal  property  which  the  testator 
But  this  is  after  all  a  mere  question  ineflfectually    attempts    to    bequeath, 

653 


§    520  LAW    OF    WILLS.  [PART    VI. 

§  520.  The    Same    Subject:     General    Bequest    of    a    Particular 
Residue. 

Where  a  general  bequest  is  made  of  chattels  of  a  particular  de- 
scription,— as  of  all  one's  mortgages,  or  stocks,  or  moneys  in  bank, 
— the  bequest  will  carry  whatever  chattels  of  that  description  the 
testator  leaves  at  his  death,  whether  less  or  more  than  he  might 
have  expected  to  leave  when  the  will  was  made.^  And  by  analogy 
to  the  doctrine  of  our  preceding  section,  the  general  bequest  of 
residue  answering  to  this  particular  description  will  embrace  all 
of  that  kind  whose  disposition  has  failed  in  the  event  from  any 
cause.^  But  where  the  testator  gives  the  residue,  as  of  a  definite 
sum  or  a  definite  ascertained  fund,  the  bequest  of  a  particular 
residue  has  no  such  comprehensive  force.^ 

It  may  be  of  importance  to  consider,  when  construing  a  will, 
whether  the  word  "  residue  "  or  the  residuary  gift,  however  ex- 
pressed, comprises  the  general  personal  estate  or  is  confined  by  the 
context  to  such  portion  of  a  particular  fund  already  dealt  with  as 
remains  undisposed  of ;  ^  for  in  this  latter  case  the  bequest  of 
"  residue,"  even  in  its  widest  sense,  can  carry  no  more  than  the 
particular  residue.^  In  a  bequest  of  the  residue  of  one's  property 
"  of  every  description,"  words  which  merely  describe  the  different 
kinds  thereof  are  presumably  not  of  limitation  but  illustration.^ 

but  property  over  which  the  testator  2.  L.  R.  2  Eq.  276 ;  Easum  v.  Apple- 
has  a  general  power  of  appointment  ford,  5  My.  &  Cr.  56.  As  to  the  nat- 
and  which  he  has  by  the  will  inef-  ural  import  of  making  an  express 
fectually  appointed.  Hawkins  Wills,  charge  upon  the  fund,  see  Baker  v. 
41;  Spooner's  Trusts,  2  Sim.  N.  S.  Farmer,  L.  R.  3  Ch.  537;  11  Ch.  D. 
129,   1  Johns.    (Eng.)    276,   §   526,  949.    And  see  1  Jarm.  Wills,  7"65-767, 

A  gift  of  "  all   my   personal   prop-  where  the  English  cases  are  collated, 

erty,"   the   land   having  been   devised  The  testator's  intent  as  shown  in  the 

specifically,  may  be  presumed  a  gift  whole  will  solves  all  such  questions, 

of    the   personal    property    remaining  and  dispenses  with  abstruse  maxims 

after    the    payment    of    debts.      110  under  this  head. 

Penn.  St.  171,  1  A.  85.  3.  1   Jarm.    767;    Boys  v.   Morgan, 

9.  1  Jarm.  691,  765;  Page  v.  Young,  3  M.  &  Cr.  661. 

L.  R.  19  Eq.  501,  4.  Jull  v.  Jacobs,  3  Ch.  D.  703;  58 

1.  Do  Trafford  v.  Tempest,  21  Beav.  How.  Pr.   107. 

504.  5.  Burnside's     Succession,     35    La. 

054 


CHAP.    II.]       DETAILS   OF   TESTAAf J^NTARY   CONSTRUCTION.  §    521 

And  in  a  division  of  residuary  estate,  one  may  pre:>cribe  an  exon- 
eration of  any  particular  share  from  debts  and  legacies  and  thus 
give  it  an  equal  or  a  preferential  import.^ 

§  521.  Residuary  or  General  Devise,  and  its  effect. 

As  for  a  residuary  or  general  devise  of  real  estate,  the  rule  has 
not  corresponded  in  construction  to  that  of  the  residuary  bequest. 
In  the  lirst  place,  the  old  law^  permitting  a  testator  to  devise  only 
the  real  estate  to  which  he  was  actually  entitled  when  the  will  was 
m^de,  and  none  acquired  subsequently,''  it  followed  that  the  devise, 
however  general  in  terms,  was  in  effect  specific;  or  rather  it  dis- 
posed specifically  of  what  was  not  already  expressed  to  be  given 
by  the  will.  On  general  principle  the  heir-at-law  was  favored  as 
much  as  possible,^  even  to  the  detriment  of  a  residuary  devisee ; 
and  accordingly  a  specific  devise  lapsing  by  the  death  of  a  devisee, 
the  heir  and  not  the  residuary  legatee  took  the  advantage;^  and 
in  fact  whether  a  devise  lapsed  or  was  void  ah  initio,  the  residuary 
devise  did  not  absorb  it.^  This  rule  has  produced  some  refinements 
of  construction  which  are  no  longer  of  much  consequence ;  for 
modem  legislation  both  in  England  and  America  puts  personal  and 
real  estate  on  substantially  the  same  footing  in  this  respect,  treat- 
ing both  lapsed  and  void  devises  as  accruing  prima  facie  to  the 
residuary  fund ;  so  that  consequently  the  residuary  devisee  or  lega- 
tee shall  take  the  essential  benefit  unless  the  will  discloses  an  in- 

An.   708.     A   residuary   bequest   may  distinguish  in  favor  of  a  void  devise, 

carry    a    recognized    claim    upon    the  Lord      Ellenborough,      for      instance, 

government.      Pierce    v.    Stidworthy,  Stewart  v.  Sheffield,  13  East  527;   33 

79  Me.  234,  9  A.  67.  L.  J.  Ch.  582;  Hawkins  Wills  44.  But 

6.  Addeman  v.  Rice,  19  R.  1.  30,  31  lapsed  and  void  devises  stand  in  rea- 
A.  429.  son    on   the    same   footing.      1    Jarm. 

7.  Supra,  §  29.  Wills,  647  and  cases  cited.    And  Lord 

8.  Supra,  §  479.  Camden  lays  down  the  rule  emphat- 

9.  1  Jarm.  Wills,  645,  646;  Good-  ically  against  the  residuary  legatee 
right  V.  Opie,  8  Mod.  123;  Fort.  182,  wherever  the  testator  intended  to  de- 
184;  Prescott  v.  Prescott,  7  Met.  141.  vise  the  residue  exclusive  of  a  part 
'  1.  Tongue  v.  Nutwell,  13  Md.  415.  given  away.  Amb.  645.  See  also 
Some   English   authorities   appear   to  Ferguson  v.  Hodges,   1  Harring.  528. 

G55 


§    522  LAW    OF    WILLS.  [PAKT    VI. 

tent  to  the  contrary.^  Morooverj  in  England  and  our  several  States, 
after-acquired  real  estate  may  pass  bj  a  will,  and  the  instrument 
may  speak  with  reference  to  all  property,  re^l  or  pergonal,  as  of 
the  date  when  it  comes  into  operation,  or,  in  other  words,  when  the 
testator  dies.^ 

Under  the  statute  policy,  therefore,  which  applies  to  wills  made 
within  the  last  half-century,  or  more,  the  analogies  of  legacies  and 
devises  fairly  harmonize  in  construction,  so  far  as  residuary  gifts 
are  concerned.  The  intention  to  carry  lapsed  and  void  devises, 
as  well  as  the  estate  undisposed  of,  to  the  residuary  devisee,  is  not 
to  be  defeated  in  construction  by  expressions  like  "  all  other  land," 
or  "  all  land  not  hereinbefore  devised."  *  Yet  an  express  reser- 
vation or  exception  against  the  residuary  devisee  or  in  favor  of 
heirs  would  receive  its  due  interpretation.  So,  too,  the  general 
devise  of  a  particular  residue,  as  of  the  rest  of  the  testator's  lands 
in  the  town  of  A,  should  receive  a  limited  and  particular  effect.' 
And  once  more,  if  the  general  residuary  devise  fails  to  take  full 
effect  as  to  some  aliquot  share,  the  presumption  is  that  so  much  of 
the  land  lapses  to  the  heir  as  property  undisposed  of.* 

§  522.  Devise  of  Residue,  etc.;  Residuary  Clause. 

A  devise  of  "  all  the  residue  "  of  the  testator's  property  or  of 
his  estate,  is  presumed  to  pass  real  as  well  as  personal  property ;  ^ 

2.  Stat.  1  Vict.  c.  26,  §  25;  Cogs-  6.  Supra,  §  519;  Greated  v. 
well  V.  Armstrong,  2  K.  &  J.  227;  Greated,  26  Beav.  621.  And  see  1 
Thayer   v.   Wellington,   9    Allen   284;       Jarm.  651,  652. 

Deford  v.  Deford,   36  Md.   168 :   Mas-  A   devise  and   bequest   of   "  all   my 

sey's    Appeal,    88    Penn,    St.    470,    1  estate,   both   real   and   personal,   that 

Jarm.  Wills  646,   651,  and   American  I   shall   inherit   as   my   portion   after 

notes;  Drew  v.  Wakefield,  54  Me.  296;  my   father's   death,"   receives   full   ef- 

Kip  V.  Kortland,  7  Hill   (N.  Y.)   348;  feet  as   to   real  estate,   in   140   Penn. 

18   R.   I.   62,   19  L.  R.   A.   413,   25   A.  St.    325,   21   A.    398.      And   see   56    A. 

840.  656,  98  Me.  167;   Davis  v.   Davis,   57 

3.  Supra,  §§  29,  486;  Stat.  1  Vict.  N.  E.  317,  62  Ohio  St.  411,  78  Am. 
§§  3,  24.  St.  Rep.   725;    Rickman  v.  Meier,   72 

4.  Green  v.  Dunn,  20  Beav.   6.  N.   K.   1121,  213  111.   507. 

5.  Springett  v.  Jennings,  L.  R.  10  7.  Faust  v.  Birner,  30  Mo.  414; 
Eq.  488;  ib.  G  Cli.  333;  supra,  §  521.  Fraser  v.  Hamilton,  2  Desaus.  573;   1 

656 


CHAP.    II.]       DETAILS   OF   TESTAMENTAKY   CONSTRUCTION.  §    522 

meaning  by  "  residue  "  whatever  surplus  may  be  left  after  all  lia- 
bilities of  the  estate  are  discharged  and  the  other  specific  purposes 
of  the  will  carried  into  effect ;  *  and  so  with  kindred  expressions 
such  as  "  all  the  rest  and  residue  "  or  "  all  the  rest,  residue,  and 
remainder."  ^  If  heirs  or  kindred  are  expressly  excluded  from 
benefit  under  the  will,  all  the  clearer  is  the  import  of  expressions 
like  these.^  In  other  words,  a  general  sweeping  residuary  clause 
carries  everything  presumably,  which  is  not  otherwise  effectually 
disposed  of,  and  if  "  estate  real,  personal  and  mixed,"  be  used  in 
this  connection  the  import  is  plain  enough.  And  a  devise  of  rest, 
residue,  and  remainder  in  real  estate  will  pass  a  fee,  under  the 
modern  rule,  even  though  no  words  of  limitation  or  inheritance  be 
added.^ 

Such  words  as  "  rest,"  "  residue,"  "  remainder,"  are  not  indis- 
pensable to  a  residuary  bequest  of  personal  estate ;  but  in  various 
instancesi  words  and  expressions  quite  informal  have  been  given 


Wash.  45;  Molineaux  v.  Raynolds,  55 
N.  J.  Eq.  187;  113  N.  Y.  337;  Smith 
V.  Smith.  141  N.  Y.  29;  cases  infra; 
§§   508-510. 

8.  Jones  Eq.  302;  Smith  v.  Terry, 
43  N.  J.  Eq.  659,  12  A.  204;  45  Minn. 
48,  47  N.  W.  308. 

9.  2  Jones  Eq.  215;  2  Desaus.  422; 
Parker  v.  Parker,  5  Met.  134;  Smith 
V.  Smith,  17  Gratt.  268. 

1.  Atkins  V.  Kron,  2  Ired.  Eq.  58. 
A  gift  of  "  all  the  balance "  of  the 
testator's  property,  both  real  and  per- 
sonal, "  to  the  exclusion  of  all  others," 
clearly  imports  an  intention  to  pass 
all  the  real  estate  of  which  the  tes- 
tator should  die  seized.  Wynne  v. 
Wynne,  23  Miss.  251,  57  Am.  Dec.  139. 
"  Balance  of  my  estate  "  is  exhaust- 
tive,  carrying  both  real  and  personal 
estate.  Grimes  v.  Smith,  70  Tex.  217; 
86  A.  291,  238  Penn.  153. 

2.  Parker  v.  Parker,  5  Met.  134. 


But  where  one  gives  by  will  abso- 
lutely to  certain  persons,  and  in  cer- 
tain contingencies  "  what  may  re- 
main "  after  the  death  of  such  per- 
sons to  others,  the  words  "  what  may 
remain  "  can  mean  no  more  than  what 
might  survive  ordinary  use,  wear,  and 
decay.  Robertson  v.  Johnston,  24  Ga. 
102. 

Where  "  all  my  worldly  goods," 
etc.,  are  given,  "  likewise  my  house 
and  lot,"  this  does  not  carry  other 
real  estate  owned  by  the  testator,  but 
not  otherwise  mentioned  or  referred 
to.  Parish  v.  Cook,  78  Mo.  212,  47 
Am.  Rep.  107.  But  as  between  a 
specific  devise  of  real  estate  and  a 
devise  by  way  of  residue  not  speci- 
fied, see  31  N.  J.  Eq.  560.  See  Corn- 
wall V.  Church,  80  S.  E.  148  (W.  Va.) 
( "  remainder  "  construed  as  "  resi- 
due"). 


42 


657 


§    523  LAW    OF    WILLS.  [pART    VI. 

this  effect,  out  of  regard  to  the  testator's  obvious  intention.^  A 
devise  of  this  character  has  been  held,  agreeably  to  the  intent  of  the 
will,  to  carry  all  the  real  estate,  although  "  money  "  was  the  term 
employed."' 

While  the  residuary  clause  in  a  will  is  usually  the  last  of  its 
disposing  provisions,  still,  the  fact  that  it  is  not  the  last,  is  not 
of  controlling  consequence  as  against  the  true  intent  to  be  gathered 
from  the  whole  will;  and  where  the  words  of  a,  residuary  clause 
are  sufficient  to  constitute  one  a  general  residuary  legatee  it  will 
not  be  readily  assumed  from  other  terms  of  the  will  that  a  less 
beneficial  interest  was  intended.^ 

§  523.  Residuary  Bequest  or  Devise  as  to  Intermediate  Income. 
A  general  residuary  bequest,  even  though  contingent  in  terms, 
will  carry  the  intermediate  income  which  is  undisposed  of  but  ac- 
cumulates ;  ^  or  at  all  events  until  the  law  against  long  accumula- 
tion stops  it  and  turns  the  stream  to  the  next  of  kin.^  Even  though 
this  personalty  or  part  of  it  is  to  be  laid  out  in  lands,  the  income 
like  its  corpus  continues  personalty  meantime,  and  the  rule  holds 
good.*  But  as  for  future  specific  bequests  generally,  the  rule  is 
that  the  intermediate  income  does  not  pass  to  the  legatee  before  the 
period  of  vesting.^ 

3.  Leighton  v.  Bailie,  3  M.  &  K.  Low,  127  P.  1027,  164  Cal.  107 ;  Bush- 
267;  2  Phill.  578;  L.  R.  14  Eq.  54;  1  by  v.  Newhall,  98  N.  E.  1032,  212 
Jarm.  Wills,  775;  Wynne  v.  Wynne,  Mass.  432;  Haynes  v.  McDonald,  96 
supra;  Morton  v.  Woodbury,  153  N.  N.  E.  823,  252  111.  236;  101  N.  E. 
Y.  243,    47  N.  E.  283.  269,  87  Ohio  St.  293. 

4.  Jacob's  Appeal.  140  Penn.  St.  6.  Trevanion  v.  Vivian,  5  Ves.  430; 
268;  23  Am.  Rep.  230,  11  L.  R.  A.  2  Atk.  472;  1  Jarm.  Wills  652;  Hawk- 
767,  21  A.  318.  ins  Wills,   43;   Fleming  v.   Boiling,   3 

5.  Morton  v.  Woodbury,  153  N.  Y.  Call  75 ;  Cochrane  v.  Schell,  140  N.  Y. 
243,  47  N.  E.  283.     But  cf.  Markle's  516,  35  N.  E.  171. 

Estate,  187  Penn.  St.  639,  41  A.  304.  7.  Wade-Gery  v.  Handlcy,  1  Ch.  D. 

See   further   72   N.   E.   1121,   213   111.  653;  3  ib.  374. 

507;  Haug  v.  Schumacher,  60  N.  E.  8.  Boctive    v.    Hodgson,    10    H.    L. 

245,  106  N.  Y.  506;  Durham  v.  Clay,  65G. 

134   S.   W.    153,   142   Ky.    96    (after-  9.  Wyndham   v.   Wyndham,   3   Bro. 

acquired    property);     McDougald    v.  C.  C.  58;  4  ib.  144;  Hawkins  Wills,  44. 

658 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTKUCTION.  §    523 

On  the  other  hand,  devises  of  real  estate  to  take  effect  at  some 
future  period,  or  when  the  devise  itself  is  contingent  or  deferred 
in  point  of  enjoyment,  do  not  in  general  carry  the  intermediata 
i*€nts  and  profits  prior  to  the  period  of  vesting;  and  whether  the 
devise  be  specific  or  residuary,  the  income,  rents,  and  profits,  which 
accrue  during  the  suspense  of  vesting,  descend  as  estate  undis- 
posed of;  thus  affording  another  instance  in  which  the  heir-at-law 
is  favored  in  construction  above  the  beneficiaries  named  in  the 
will  ;^  for  the  residuary  legatee  of  personalty  took  what  the  law 
withheld  in  a  corresponding  case  from  the  residuary  devisee. 
Thus,  if  real  estate  is  given  to  the  use  of  an  unborn  person  or  in 
trast  for  him,  and  the  will  does  not  dispose  of  rents  and  profits 
in  the  meantime,  they  do  not  accumulate,  but  descend  to  the  heir- 
at  law.^ 

But  once  more,  if  the  testator's  residuary  real  and  personal 
estate  are  blended  in  one  gift,  though  contingent  and  future  in 
terms,  the  will  applicable  to  personalty  is  presumed  to  have  been 
intended  for  both,  and  intermediate  rents  and  profits  of  real 
estate  are  carried  as  well  as  the  income  of  the  personal  estate.' 
And  a  residuary  clause  plainly  expressed  with  respect  to  income 
will  control,  as  it  would  appear,  in  any  case.*     Where  there  is 

When  the  policy  of  the  law  is  violated  Appx.  1 ;  1  Jarm.  Wills  652,  Hawkins 

by    a    direction    to    accumulate,    no  Wills  45. 

effect  should  be  given  to  the  inten-  2.  Hopkins  v.  Hopkins,  supra.  See 
tion  of  the  testator,  and  the  distri-  §  503 ;  Parker  v.  Chestnutt,  80  Ga.  12. 
bution  should  be  in  accordance  with  3.  Genery  v.  Fitzgerald,  Jac.  468; 
the  statute  without  regard  to  the  Ackers  v.  Phipps,  3  CI.  &  F.  691; 
will;  but  a  temporary  accumulation  Rogers  v.  Ross,  4  Johns.  Ch.  397; 
which  forms  a  reasonable  contingent  Hawkins  Wills  45;  1  Jarm.  Wills,  653; 
fund  in  anticipation  of  a  decrease  of  140  N.  Y.  516,  35  N.  E.  171.  But  by 
income,  whether  it  arises  from  fortui-  this  is  meant  a  blending  of  real  and 
tous  causes  in  the  management  of  the  personal  estate  in  the  gift,  and  not 
trust  or  from  testamentary  design,  a  mere  reference.  Hodgson  v.  Bee- 
may  lawfully  be  retained.  Howell's  tive,  1  H.  &  M.  397. 
Estate,  180  Penn.  St.  515,  37  A.  181.  4,  1  Jarm.  652;  Duffield  v.  Duf- 
1.  Genery  v.  Fitzgerald,  Jac.  468;  field,  3  Bli.  X.  S.  621.  See  Lord 
Hopkins  v.  Hopkins,  Ca.  t.  Talb.  44,  Brougham  in  Ackers  v.  Phipps,  6  CI. 
1  Atk.  580  (where  it  is  reported  im-  &  F.  691,  criticised.  Hawkins  Wills 
perfectly)    and  cited  Hawkins  Wills,  46  &  Appx.  1. 

659 


§    524  LAW    OF    WILLS.  [pART    VI. 

not  a  postponed  or  contingent  gift  of  the  residue,  but  a  particular 
interest  to  commence  m  futuro  in  a  fund  already  constituted,  it 
would  appear  that  intermediate  income  is  not  carried  either  of 
real  or  personal  estate.^ 

§  524.  Residuary  Bequest  or  Devise  as  to  Gift  of  Proceeds  of 
Sale,  of  Reversionary  Interests,  etc. 

Gifts  of  the  proceeds  of  real  estate  directed  bj  the  will  to  be 
sold,  and  gifts  of  money  charged  on  land,  like  devises  of  land, 
do  not,  prima  facie,  fall  into  the  residue,  upon  lapse,  unless  local 
legislation  changes  the  rule.®  But  this  rul'e  yields  to  a  clear  di- 
rection in  the  will  which  shows  a  contrary  intent.''  Where  execu- 
tors are  directed  to  manage  a  certain  farm  and  apply  its  revenues 
for  the  support  and  benefit  of  persons  named,  the  latter  have  no 
vested  right  to  the  personal  property  on  the  farm.^ 

As  to  reversions,  we  may,  add,  the  modern  rule  which  extends 
the  scope  of  a  devise  to  after-acquired  lands,  favors  a  more  liberal 
treatment  of  such  undisposed-of  interests  than  formrly;  and  in 
general,  a  residuary  devise  or  bequest  will  now,  without  distinc- 
tion of  real  or  personal  esate,  include  every  reversionary  interest 
which  remains  undisposed  of  by  the  previous  gifts  in  the  will, 
whether  in  remainder  or  possession,  whether  the  same  be  a  re- 
version remaining  after  an  interest  created  by  the  will  or  not.' 

Stat.  1  Vict,  c,  §  24  does  not  affect  Concerning  the  meaning  of  the  word 

the    question    regarding    intermediate  "  revert  "  see  38  S.  C.  66. 

income   of   residuary    real   estate.      1  9.  1     Jarm.     Wills,     654-663,     and 

Jarm.  653.  cases  cited  passim;  Church  v.  Mundy, 

5.  Weatherall  v.  Thornhurgh,  8  12  Ves.  426;  Glover  v.  Spendlove,  4 
Oh.  D.  261,  L.  R.  20  Eq.  255.  Bro.  C.  C.    (Perkins's  ed.)    338,  note; 

6.  Amb.  643,  1  V.  &  B.  410;  Ar-  Brigham  v.  Sliattuck,  10  Pick.  306; 
nold  V.  Chapman,  1  Ves.  Sen.  108;  Brattle  Square  Church  v.  Grant,  5 
Hawkins  Wills  47;   supra,  §  521.  Gray   142,  66  Am.  Dec.  356.     4  Kent 

7.  lb.;  Diirour  v.  Motteux,  1  Ves.  Com.  10;  3  Bradf.  (N.  Y.)  73;  Youngs 
Ren.  320;  Heph install  v.  Gott,  2  J.  &  v.  Youngs,  45  N.  Y.  258;  Harper  v. 
H.  450.  Blean,  3  Watts  473.  27  Am.  Dec.  367; 

8.  Beirne  v.  Bcirne,  33  W.  Vt.  663,  Woodman  v.  Woodman,  89  Me.  128, 
11  S.  E.  46.  35  A.  1037. 

660 


CJIAP.    II.]       DETAILS   OF   TESTAMENTARY    CONSTRUCTION.  §    525 

This  rule  does  not  take  effect,  however,  where  upon  the  whole 
will,  it  appears  that  the  testator  not  only  foresaw  what  would 
happen,  but  intended  to  dispose  differently  ;^  and  not  to  enter 
into  a  close  comparison  of  discrepant  authorities,  we  may  leave 
each  will  to  serve  as  its  own  criterion  with  this  brief  statement 
of  modem  maxims.  For  exceptions  consistent  with  a  particular 
testator's  intent  may  be  indicated  as  to  any  residuary  gift;  and 
this  should  always  be  kept  in  mind. 

§  525.  Devises  and  Bequests  in  Execution  of  Powers. 

To  speak  finally  of  devises  or  bequests  as  operating  by  way  of 
appointment  or  in  execution  of  some  power  which  is  vested  in 
the  testator,  the  earlier  rule  of  construction  has  been  that  devises 
and  bequests  prima  facie  do  not  include  property  which  was  not 
the  testator's  own  but  of  which  he  had  a  power  to  dispose ;  or, 
in  other  words,  that  an  apparent  gift  of  such  property  by  the  testa- 
ment is  not  enough  without  clearer  marks  of  his  intention  to  exe- 
cute the  power  in  question.^  But  a  distinct  description  of  the 
property  embraced  under  the  power  is  held  to  manifest  sufficiently 
one's  intention  to  execute  it  by  the  testamentaiy  gift.^  And  if  a 
testator  should  devise  "  all  his  lands  "  or  ^'  all  his  lands  in  A," 
and  no  real  estate  of  his  own  answered  the  description,  lands  over 
which  he  had  only  a  power  might  pass  by  the  devise,  rather  than 
leave  the  whole  disposition  nugatory.* 

1.  3  Sandf.  (N.  Y.)  96;  Johnson  testator  for  life,  with  remainder  as 
V.  Stanton,  30  Conn.  301 ;  Hawkins  he  should  by  deed  or  will  appoint,  etc. 
Wills  47,  note  by  Swords.  3.    David's    Trusts    Re,    1    Johns. 

As   to   proceeds   of   a   policy   of   in-  (Eng.)    495;  Hawkins  Wills  23. 
siirance    payable    to    some    particular  4.  1  Jarm.  Wills  676;  1  Sugd.  Pow. 

person,   see  Davies  Re,    (1892)    3   Ch.  916,     8th    Ed.;     Hawkins    Wills    24; 

63.  Denn  v.  Roake,  6  Bing.  475;  Standen 

2.  6  Co.  17  b;  Andrews  v.  Emmot,  v.  Standen,  2  Ves.  Jr.  589.  The  bur- 
2  Bro.  C.  C.  297;  Hougham  v.  Sandys,  den  is  on  the  party  claiming  an  ap- 
2  Sim.  95 ;  Hawkins  Wills  22 ;  1  Jarm.  pointment  by  will  to  show  that  the 
Wills  676-682;  1  Atk.  559.  Thus,  a  testator  had  no  other  real  estate 
gift  of  "  all  my  real  estate  "  or  "  all  when  the  will  was  made.  Caldecott 
my  personal  estate  "  will  not  include  v.  Johnson,  7  M.  &  Gr.  1047. 

real  or  personal  estate  settled  on  the 

GGl 


§    526  LAW    OF    WILLS.  [pART    VI. 

§  526.  The  Same  Subject. 

The  Statute  of  Victoria  shifts  this  presumption,  or  rather,  so  far 
as  general  powers  are  concerned ;  for  a  special  power  to  appoint,  or 
a  power  limited  to  a  particular  class  of  objects,  is  left  as  before. 
And  the  present  rule  of  construction  is  accordingly  that  general 
devises  of  real  estate  and  bequests  of  personal  estate  which  are 
generally  described  will  be  presumed  to  include  real  or  personal 
estate  which  the  testator  may  have  power  to  appoint  generally, 
unless  the  will  discloses  a  contrary  intention,^  American  statutes 
establish  this  rule  with  some  local  variations  for  this  country; 
and  the  inclination  now  appears  in  our  leading  States  to  regard 
a  general  devise  or  bequest  as  operating  jyrirrui  facie  in  execution 
of  whatever  general  power  of  disposal  may  he  vested  in  the  testa- 
tor." Independently,  indeed,  of  legislation,  the  general  tendency 
in  the  United  States  has  been  to  treat  the  presumption  against 
intending  to  excute  a  power  as  one  of  no  great  force,  whether  with 
regard  to  a  devise  or  bequest;  since  this  might  be  overcome  by 
some  reference  in  the  will  to  the  power,  or  by  some  reference  to 
the  property  which  was  subject  to  the  power,  or  where  the  pro- 
vision of  the  will  could  not  otherwise  take  effect;  or  wherever  else 
the  interpretation  of  the  will  under  all  the  circumstances  showed 
that  the  testator  probably  had  it  in  view  to  execute  the  power.^ 
But  a  mere  residuary  clause  would  not  thus  operate;^  and  wherever 

5.  Stat.  1  Vict.  c.  26,  §  27,  which,  Allen,  397;  White  v.  Hicks.  33  N.  Y. 
it  is  observed,  speaks  of  general  real  383;  1  Bradf.  (N.  Y. )  114;  Andrews 
and  personal  property  which  the  tes-  v.  Brumfield,  33  Miss.  108 ;  4  Kent 
tator  has  power  to  appoint  "  in  any  Com.  334,  335 ;  Kimball  v.  Bible 
manner  he  may  think  proper."  1  Society,  65  N.  H.  139,  23  A.  83,  85. 
Jarm.  Wills  682,  Hawkins  Wills  27.  7.  See  this  subject  ably  discussed 
A  power  is  general  under  this  act,  by  Story,  J.,  in  Blagge  v.  Miles,  1 
though  capal)le  of  being  executed  by  Story  426;  4  Kent  Com.  334,  335. 
will  oidy.  24  Beav.  403;  3  Sim.  &  The  avowal  in  the  will  of  an  intent  to 
Gif.  303.  And  see  Wilkinson  lie.  L.  execute  a  power  is  itself  an  execu- 
R.  4  Ch.  588 ;  Boyes  v.  Cook,  14  Ch.  tion  of  it  without  any  express  de- 
D.  52;   §   519,  note.  claration.     Blake  v.  Hawkins,  8  Otto 

6.  Hawkins  Wills  27,   and  Sword's  315,  25  L,  Ed.  139. 

iiot<":    1    Jarm.   Wills   676,   and   Bige-  8.  Amory  v.  Meredith,  7  Allen,  397; 

low's    note;     Amory    v.    Meredith,    7      Blagg  v.  Miles,  supra;  Hawkins  Wills 

GG2 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY    CONSTRUCTION.  §    528 

the  circumstances  are  open  to  inquiry  in  a  doubtful  case,  the  rule 
lia^  been  that  tlie  circumstances  as  existing  when  the  will  was 
made  furnish  the  only  criterion  of  intent,  and  that  matters  sub- 
sequent cannot  be  considered.^ 

§  527.  Correction  of  Errors  in  describing  Property. 

That  moulding  of  language  of  which  we  have  spoken/  in  order 
to  further  a  testator's  obvious  intention,  is  preserved  within  pru- 
dent limits  where  a  misdescription  of  what  is  given  appears.  Thus, 
for  the  sake  of  correcting  what  is  manifestly  a  clerical  error,  and 
giving  a  sensible  meaning  to  what  would  otherwise  be  absurd, 
"rent  and  personal  "  property  has  been  read  "  real  and  personal."^ 
But  to  enlarge  the  phrase  "  the  rest  of  my  estate  personal  "  to  "  the 
rest  of  my  estate  real  and  personal  "  is  beyond  the  power  of  the 
court  ;^  for  this  would  be  too  much  like  making  a  will  for  the 
testator,  a  practice  which  might  lead  to  intolerable  abuse. 

§  528.  Object  of  Gift  next  to  be  considered. 

Next  to  the  description  of  the  gift  itself  in  testamentary  con- 
struction let  us  consider  the  person  or  persons  who  may  be  the  ob- 
ject of  the  gift.  Of  personal  incapacity  to  take  under  a  will,  com- 
plete or  partial,  -v/e  have  already  discoursed  in  general ;  applying 
the  doctrine  to  aliens,  subscribing  witnesses  to  the  will,  corpora- 

22 ;    Harvard    College    v.    Balch,    171  Victoria.     Supra,  §  299 ;  Stat.  1  Vict. 

111.  275.  c.  26,  §  10. 

9.  Boyes  v.  Cook,  14  Ch.  D.  52.    Cf.  1.  Supra,   §    477. 

Funk    V.    Eggleston,    92    111.    515,    34  2.  Baird  v.  Boucher,  60  Miss.  320. 

Am.   Rep.   136.  And  so  in  other  cases  of  the  kind,  pro- 

Under  the  English  act  a  will  may  vided    the    proper    correction    can    be 

operate  as  executing  a  power  subse-  gathered    from   the   context.      North- 

quently  created.     1  Jarm.  676,  Bige-  em's  Estate  Re,  28  Ch.  D.  153;  c.  3, 

low's    note;    Boyes    v.    Cook,    supra.  post;  §  516;   58  So.  190. 

But   not   powers   which   do   not   come  3.  Graham  v.   Graham,   23   W.   Va. 

into  existence  while  the  testator  was  36;     4S    Am.    Rep.    364.      Not    even 

alive.     32  Beav.  31.     We  have  already  though    the   codicil    recited    that    the 

seen    that    wills    executed    under    a  testator  had  by  his  will  disposed  of 

power   are   deprived    of   all   peculiar-  his  "  estate  real  and  personal,"  would 

ities  of  execution  under  the  Statute  of  the  court  make  such  a  change. 

663 


§    529  LAW    OF    WILLS.  [pART    VI. 

tions,  infants,  insane  persons,  those  under  coverture,  and  the  like,^ 
Uncertainty,  whether  in  the  gift  or  the  object  of  the  gift,  or  the 
interest  given,  we  shall  consider  at  some  length  hereafter.^  But 
let  us  now  lay  down  some  leading  principles  of  construction  appli- 
cable to  the  objects  of  gift  by  testament. 

§  529.  Gift  to  Children,  etc.,  as  a  Class,  how  treated. 

And  first,  to  speak  of  children,  grandchildren,  or  other  near 
relatives  to  some  person  of  a  given  class.  Our  law,  instead  of 
supposing  that  a  gift  to  objects  thus  brought  together,  should  in- 
clude naturally  all  of  that  class  who  may  fulfil  the  description  at 
any  time,  presumes  rather  that  the  testator  intended  the  class  to  be 
ascertained  upon  his  death,  and  neither  earlier  nor  later.  Hence 
a  devise  or  bequest  to  the  children  of  A,  or  of  the  testator,  means 
prima  facie  to  those  of  that  class  in  existence  at  the  testator's 
death,  provided  there  be  any  at  all  to  answer  that  description;® 
and  this  rule  extends  to  grandchildren,  issue,  brothers,  nephews, 
and  cousins.^  Nor  is  this  presumption  to  be  varied,  whether  an 
aggregate  sum,  like  $5000,  be  given  to  the  class, — as  $5000,  to 
the  children  (or  grandchildren,  or  brothers,  etc.)  of  A, — or  a  cer- 
tain sum  to  each  member  of  the  class,  as  to  the  children  (or  grand- 
children, or  brothers,  ete.)  of  A,  $1000  each.^  As  we  shall  pres- 
ently see,  it  is  an  immediate  gift,  or  one  to  take  effect  in  possession 
upon  the  testator's  death,  to  which  this  maxim  most  properly  ap- 
plies. 

This  rule  of  construction  as  to  the  class  of  children  or  near  rela- 

4.  Supra,  §§  23-27.  As  to  our  mod-  7.  lb.;  Baldwin  v.  Rogers,  3  D.  M. 
ern  policy  unfavorable  to  subscrib-  &  G.  649 ;  Myers  v.  Myers,  3  McCord 
ing  witnesses  in  this  respect,  see  §  357.  Ch.  214;   State  v.  Raughley,  1  Houst. 

5.  C.  3,  post.  5fll;  next  note;  Smith  v.  Ashurst,  34 

6.  Viner  V.  Francis,  2  Cox  190;  Kay  Ala.  210;  Whall  v.  Converse,  146 
638;  Hawkins  Wills  68;  Jenkins  v.  Mass.  345,  15  N.  E.  660;  §  563. 
Freyer,  4  Paige  47;  Downing  v.  Mar-  8.  Mann  v.  Thompson,  Kay  638. 
shall,  23  N.  Y.  373,  80  Am.  Dec  290;  See  also  Chasmar  v.  Bucken,  37  N.  J. 
Worcester  v.  Worcester,  101  Mass.  Eq.  415;  Robin-on  v.  McDiarmid,  87 
132;  2  Jarm.  W^ilis  154,  156,  and  N.  C.  455.  As  to  any  lapse  during 
Bigelow's  note.  testator's  lifetime  see  19  Barb.  494. 

664 


CHAP.    II.]        DETAILS   OF    TESTAMENTARY    CONSTRUCTION.  §    52{> 


tives  will  apply  even  though  words  of  additional  description  are 
•used ;  ^  but  if  the  description  be  such  as  narrows  the  gift  to  per- 
sons individually  specified,  and  now  living, — as  in  the  gift  to  the 
children  of  A,  namely,  B.,  C.  and  D,^ — or,  on  the  other  hand,  ex- 
tends it  to  those  of  that  class  who  may  be  born  and  begotten  after 
the  testator's  death, — as  in  the  gift  "  to  all  grandchildren  now 
bom  or  to  be  hereafter  bom  during  the  lifetime  of  their 
respective  parents," —  the  manifest  intendment  of  the  will 
takes  ^  effect  accordingly.^  But  such  exceptions  only  arise 
upon  sensible  grounds  of  inference,  and  a  doubtful  ex- 
pression in  one  part  of  the  will  may  be  cleared  or  cor- 
rected by  reference  to  what  the  instrumnt  imports  in  other  parts, 
and  taken  as  a  whole.^ 

In  short  the  disposition  is  to  regard  all  testamentary  gifts  to 
members  of  a  class  consisting  of  children,  grandchildren,  issue, 
brothers,  nephews,  or  cousins,  as  intending  prima  facie  that  class 
as  it  may  exist  at  the  testator's  death,  whether  the  eifect  be  to 
reduce  or  to  extend  the  number  of  individual  beneficiaries  entitled 
to  the  fund.* 


9.  Examples  are  aflForded  in  Hawk- 
ins Wills  68,  69.  As,  if  the  gift  be 
to  the  children  "  of  the  late  A," 
a  person  dead  at  the  date  of  the  will, 
or  to  the  "  present  born  children  of 
A."  Leigh  v.  Leigh,  17  Beav.  605. 
And  see  Lee  v.  Plain,  4  Hare  250; 
Paul  V.  Compton,  8  Ves.  375 ;  Kay 
638. 

1.  Bain  v.  Lescher,  11  Sim.  397; 
Williams  v.  Neff,  52  Penn.  St.  333; 
Morse  v.  Mason,   11   Allen   36;   L.   R. 

8  Eq.  52.  So  with  other  expressions 
which  show  that  only  relatives  now 
living  are  contemplated.  2  Jarm. 
155;  Starling  v.  Price,  16  Ohio  St. 
32.  As,  for  instance,  "  to  the  five 
children  of  A."      Smith's   Trusts  Re, 

9  Ch.  D.  117. 

2.  Scott    V.    Lord    Scarborough,    1 

66, 


Beav.  154;  56  N.  E.  831,  176  Mass.  7. 

3.  So  may  the  gift  of  A,  the  tes- 
tator, be  to  children  living  at  the  de- 
cease of  B ;  here  the  event  of  B's  death 
might  be  before  or  after  that  of  the 
testator.     2  Jarm.  Wills  158. 

Limitation  to  "  every  other  son  or 
sons  "  is  construed  to  exclude  the  eld- 
est son.  Locke  v.  Dunlop,  39  Ch.  D. 
387.  "  To  be  begotten  "  may,  if  so 
intended,   refer  to   futurity.     lb. 

Ordinarily  a  devise  to  sons  by 
name  is  not  a  gift  to  a  class.  Church 
V.  Church,  15  R.  I.  138,  23  A.  302. 

4.  Schaffer  v.  Kettell.  14  Allen  528 ; 
166  Mass.  241;  Mitchell  v.  Mitchell, 
47  A.  325,  73  Conn.  303 ;  Hill  v.  Hill, 
132  N.  W.  738,  90  Neb.  43;  Barker  v. 
Barker,  135  S.  W.  396,  143  Ky.  66; 
Welch   V.    Blanchard,    94    N.    E.    81 1^ 


§    530  LAW    OF    WILLS.  [PAET    VI. 

§  530.  The  Same  Subject. 

Notwithstanding  the  above  rule,  the  judicial  disposition  is  to 
let  in  subsequent  issue  and  near  relations  of  a  class  as  generously 
as  possible  where  the  terms  of  the  will  justify  a  distinction.  That 
distinction  is  found  when  the  aggregate  fund  to  the  class  is  not 
distributable  at  once,  and  the  question  who  shall  compose  the  class 
may  conveniently  be  postponed;  or,  in  general,  where  the  total 
amount  of  the  gift  does  not  depend  upon  the  number  of  participants 
admitted  to  share  it^  Hence  the  English  rule,  confirmed  by  many 
American  precedents,  that  the  devise  or  bequest  of  a  corpus  or 
aggregate  fund  to  children  as  a  class,  where  the  gift  is  not  imme- 
diate, vests  in  all  the  children  in  existence  at  the  testator's  death, 
but  so  as  to  open  and  let  in  children  who  may  come  into  existence 
afterwards  at  any  time  before  the  fund  is  distributable."  And 
this  rule  of  construction,  like  the  former  one,  extends  its  favor  to 
grandchildren,  issue,  brothers,  nephews,  and  cousins.^  Thus  if 
property,  real  or  personal,  be  given  by  will  to  A  for  life,  and  after 
his  decease  to  the  children  of  B,  all  of  B's  children  who  are  alive 
at  the  death  of  the  testator  take  vested  interests,  which  may  be 
partially  divested  to  let  in  those  after-born  during  the  life  of  A; 
and  so  correspondingly,  when  the  property  is  tied  up  from  dis- 
tribution for  ten,  fifteen  or  twenty  years ;  the  effect  of  which  is  to 

208    Mass.    523;    King's    Estate.    93  46  N.  H.  270;  Hall  v.  Hall,  123  Mass. 

K.   E.  484,  200  N.  Y.  189;    White  v.  120;    1   McCart.   167;   JEToss  v.   Drake, 

Underwood,  102  N.  E.  426,  215  Mass.  37   Penn.   St.   375;    143  Mass.   237,   9 

299;   Hawkins  Wills   69,   70,   Swords  N.    E.   625;    103   N.   Y.   453,    57   Am. 

note.     Thus,  the  idea  of  a  class  may  Rep.  760,  9  N.  E.  241;  72  Md.  67,  19 

be  the   loading  one  in  the  will,   not-  A.    146;    Tayloe   v.    Mosher,    29    Md. 

withstanding  an   enumeration   of   the  445,  37  Miss.  65;  Cooper  v.  Hepburn, 

persons  who  constituted  the  class  at  15   Gratt.   558;   38   111.   206.     A  child 

the  date   of   its  execution.     Springer  en  t^enire  sa  mere,  and  born  one  day 

V.  Conglcton,  30  Ga.  977.  after   the   gift   takes   effect,    fulfils   a 

5.  Devisme  v.  Mello,  1  Bro.   C.  C.  description    of    child.      Burrows    Re, 

537;  2  Madd.  129;  Hawkins  Wills.  71,  (1895)    2   Ch.  49;    109   N.  C.   675,   14 

72,  and  Sword's  note;  2  Jarm.  Wills,  S.  E.   74. 

156-167  and  Bigelow's  note;  Ayton  v.  6.  Hawkins   Wills   72;    Baldwin   v. 

Ayton,  1  Cox  327;   Moore  v.  Dimond,  Rogers,  3  D.  M.  &  G.  649. 
5  II.  I.  129;  Hill  v.  Rockingham  Bank, 

666 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   COISrSTRUCTION.  §    531 

make  the  fund  distributable  ultimately  among  the  children  (or 
grandchildren,  brothers,  etc.,  as  the  devise  or  bequest  may  be)  who 
belong  to  the  class  at  the  period  of  distribution,  and  the  representa- 
tives of  such  as  may  have  died  meanw^hile  after  surviving  the  tes- 
tator.^ All  limitations  future  in  enjoyment  and  not  immediate 
appear  to  come  within  soope  of  this  maxim.^ 

But  this  enlarged  rule  of  constniction  does  not  operate  where  the 
postponement  of  distribution  is  that  merely  which  the  law  fixes 
for  convenience  in  paying  debts,  and  winding  up  an  estate  in  the 
usual  process  of  settlement ;  ^  nor  where  the  aggregate  gift  is  nec- 
essarily increased  by  tlie  number  of  participants,  instead  of  being 
a  fund  whose  total  amount  is  to  be  shared  among  more  or  fewer 
individuals  of  a  class ;  ^  nor,  to  speak  generally,  when  such  a  rule 
would  not  consist  with  a  fair  and  just  interpretation  of  the  par- 
ticular will. 

§  531.  The  Same  Subject. 

Another  rule  of  presumption  in  this  connection  is,  that  where 
an  aggregate  fund  is  given  to  children  as  a  class,  and  the  share  of 
each  child  is  made  payable  on  attaining  a  given  age,  or  on  marriage, 
the  period  of  distribution  is  the  time  when  the  first  child  takes  his 
share,  and  those  bom  later  are  excluded ;  ^  and  the  same  holds  good 

7.  10  Hare,  441.  where  the  prior  estate  determines  by 

8.  The  rule  of  the  text  applies  to  bankruptcy.  L.  R.  16  Eq.  590. 
gifts  in  the  nature  of  powers  or  in  9-  Hagger  v.  Payne,  23  Beav.  479 
execution  of  powers.  Hawkins  Wills  Hence  might  arise  a  distinction  be- 
72;  8  Ves.  375;  2  Jarra.  57,  note.  It  tween  the  case  where  postponement  of 
extends  also  to  the  case  where  the  one  or  two  years  took  place  under 
testator  does  not  create  the  life  es-  the  general  rules  of  settlement  and 
tate,  but  has  only  a  reversionary  in-  distribution,  and  that  where  the  tes- 
terest  expectant  upon  a  previous  life  ^ator  expressly  directs  postponement 
estate,  of  which  his  will  disposes.  ^^r  one  or  two  years.  2  Strobh.  Eq.  1. 
Hawkins  Wills,  74;  2  Jarm.  157;  15  1-  Hawkins  Willis  73;  Ringrose  v. 
Ves.    122.      But  as   to   the   gift   of   a  Bramham,  2  Cox.  384. 

fund,   part  of  which   is   reversionary,  2.  Hawkins  Wills  76;  2  Jarm.  Wills 

and  part   is  not,   see  Hawkins   Wills      ICO;    Andrews  v.   Partington,   3   Bro. 
75,  and  cases  cited.     The  rule  applies      C.  C.  403;   3  K.  &  J.  48;   Whitbread 

667 


§    531  LAW    OF    WILLS.  [pAET    VI. 

apparently  of  gifts  to  grandchildren,  or  to  near  relatives  of  the 
other  classes  already  considered."  This  is  a  rule  which  supplies 
but  does  not  conflict  with  our  former  maxims ;  the  difference  being 
that  there  we  supposed  all  shares  payable  at  one  and  the  same  pe- 
riod of  distribution,  Avhether  postponed  or  immediate,  while  here 
they  become  payable  at  different  times ;  and  the  question  is,  who 
besides  those  living  at  the  testator's  death  shall  be  embraced  under 
the  gift. 

This  rule  of  presumption  appears  to  apply  wherever  the  share 
of  each  one  of  the  class  is  made  to  depend  upon  some  event  or  al- 
ternative personal  to  the  individual ;  as  if  the  gift  be  made  to  A's 
children,  the  share  of  each  to  be  paid  on  attaining  twenty-one,  or 
on  death  under  that  age  leaving  issue,  or  on  marriage  under  that 
age;  and  the  first  one  reaching  twenty-one,  or  dying  with  issue, 
or  marrying  earlier,  no  after-born  child  will  be  let  in.*  Nor  do 
words  of  mere  futurity  (such  as  "  bom,  or  to  be  bom  ")  affect  this 
construction ;'  unless  indeed  the  intent  disclosed  by  the  context 
should  be  plainly  to  the  contrary ;  for  if  the  testator  should  direct 
a  distribution  to  await  the  majority  of  the  youngest  child,  or  some 
event  personal  to  the  latest  member  of  the  class,  the  postponement 
of  payment  would  keep  the  class  open  correspondingly  to  let  in  the 
after-born,^  since  the  inconvenient  delay  which  our  presumption 
would  remove  cannot  in  such  a  case  be  avoided.  Should  any  one 
of  the  class  attain  the  age  in  the  testator's  lifetime,  no  after-bom 
child  can  usually  be  let  in  at  all.^ 

V.  Lord  St.  John,  10  Ves.  152:   Hub-  5.   10   Ves.    152;    Iredell   v.   Iredell^ 

bard   v.   Lloyd,   6   Cush.   523,   53   Am.  25  Beav.  485. 

Dec.  55;   Tucker  v.  Bishop,  16  N.  Y.  6.   Mainwaring  v.   Beevor,   8   Hare, 

404;  2  Rawle  275,  21  Am.  Dec.  445;  5  44.  3  d.  M.  G.  366;  Armitage  v.  Wil- 

Jones  Eq.  44,  208;  Dawson  v.  Oliver-  liams,  27  Beav.  346. 

Massey,  2  Ch.  D.  753.  7    pj^^^j,   ^    Matthews,   10   Ch.   D. 

3.  Iredell  v.  Iredell,   25  Beav.  485.  264.     As  to  a  member  of  a  class  to 
See  L.  R.  12  Eq.  431,  per  Malins  V.  C.  whom   an   individual   legacy   is   given 

4.  Hawkins  Wills  76;   6  Ves.   344;  besides,  see  Willis  v.  Richardson,   98 
Dawson    v.    Oliver-Massey,    2    Ch.    D.  N.  E.  609,  212  Mass.  31. 

753;   2  Jarm.  Wills  162.  The   construction   of   the   foregoing 

rules  is  not  often  varied,  even  though 

C68 


CHAP.    II.]        DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    532 

§  532.  The  Same  Subject. 

If  no  members  of  the  class  described  as  children  in  a  will  are  in 
existence  at  the  testator's  death,  after-born  children  will  be  let  in 
■by  inference  even  though  the  devise  or  bequest  be  immediate,  rather 
than  let  the  gift  lapse  altogether ;  ^  though  not  where  this  would 
violate  the  plain  purpose  of  the  will.^ 

As  for  words  of  futurity  contained  in  the  gift — as  to  the  chil- 
dren "  born  and  to  be  born,"  "  begotten  and  to  be  begotten,"  "  which 
A  has  or  shall  have  " — the  effect  is  not  clearly  settled.  By  some 
expression  quite  distinct,  the  testator  may  doubtless  embrace  such 
as  happen  to  be  bom  after  the  period  of  distribution  ;^  but  English 
authorities  appear  disinclined  to  give  this  inconvenient  effect  of 
postponing  to  phrases  like  the  foregoing ;  ^  while  in  this  country 
a  disposition  is  frequently  shown  by  the  courts  to  let  in  after-bom 
children  wherever  words  of  futurity  are  used.^ 

At  all  events,  wherever  "  children  "  are  to  be  ascertained  at  a 
given  period  under  any  of  the  foregoing  rules  of  construction,  the 
class  will  beneficially  include  a  child  then  en  ventre  and  bom  af- 

it  should  lead  to  remoteness.    2  Jarm.  9.  lb. 

Wills  162.     And  see  the  English  cases  1.  Scott    v.    Lord    Scarborough,     1 

further    compared,    ib.    162-167.      All  Beav.  154. 

presumptions  as  to  members  of  a  class  2.  Ib. ;    10  Ves.   154.     The  point  is 

yield    of    course   to    the    context   and  not   perhaps  quite  settled.     Hawkins 

general  purpose  of  the  will.     If  the  Wills  71,  74.     And  see  2  Jarm.  Wills, 

testator  gives  to  children    (or  grand-  179-184,  and  cases  cited.    Mr.  Jarman 

children,  etc.)  "  now  living,"  he  means  considers    that,    except   where    distri- 

those  only  who  are  in  esse  when  the  bution  would  be  postponed   in  conse- 

will  is  made;  if  to  those  living  "  when  quence,   the  words   "  to   be   born  "   or 

B   dies,"   or   upon   the   happening    of  "  to  be  begotten,"  etc..  in  an  immed- 

some  specified  event,  that  event  might  iate  gift  will  extend  it  to  all  the  chil- 

happen  before  or  after  the  testator's  dren  who  shall  ever  come  into  exist- 

own  decease,  and  establish  the  mem-  ence.     Ib. ;   1  Mer.  654. 

bers  of  the  class   accordingly;    while  3.  Hawkins  Wills   71,  and   Sword's 

if  to  specified  individuals  of  a  class,  note;  Yeaton  v.  Roberts,  8  Fost.  459; 

those  individuals  and  no  others,  con-  3  Jones  Eq.  491:   Butterfield  v.  Has- 

stitute  the  class.     That  "  child  "  may  kins,   33  Me.   392.     The  practical  in- 

be  read  "  children,"  see  56  N.  J.  Eq.  convenience    of    postponing    a    distri- 

507,  39  A.  368.  bution   is  avoided  by   taking   refund- 

8.  Harris    v.    Lloyd.    T.    &    R.    310;  ing  bonds   from  the   existing  distrib- 

Hawkins  Wills  71;  2  Jarm.  Wills  167;  utees.    Hawkins  71,  Sword's  note. 
Amb.  448.                                                      ^QQ 


§    533  LAW    OF    WILLS.  [PART    VI. 

terwar  Js ;  *  for  the  potential  existence  of  such  a  child  brings  it 
within  the  just  and  natural  sense  of  such  a  gift.  Under  a  parent's 
will,  more,  especially,  all  one's  own  children,  present-born  or  post- 
humous, may  well  be  presumed,  in  American  policy,  as  included.^ 

§  532a.  The  Same  Subject;  Incidents  of  Gift  to  a  Class. 

By  gift  to  a  class  by  will  is  legally  meant,  in  general,  an  aggre- 
gate sum.  to  a  body  of  persons  uncertain  in  number  at  the  time  of 
the  gift,  to  be  ascertained  at  a  future  time  designated,  who  are  to 
take  in  some  definite  proportion,  the  share  of  each  being  dependent 
for  its  amount  upon  the  ultimate  number.^  And  it  is  a  general 
rule  that  any  gift  to  a  class  where  vesting  is  postponed  includes 
only  those  who  are  in  existence  at  the  time  the  vesting  is  to  take 
eSecV 

But  on  the  other  hand,  when  the  vesting  vests  immediately  the 
usual  incidents  of  a  vested  estate  apply,  even  though  the  final  ascer- 
tainment and  actual  enjoyment  be  postponed;  and  consequently 
should  a  member  of  the  class  die  before  such  period  of  ascertain- 
ment and  enjoyment  his  share  does  not  lapse  but  devolves  upon  his 
appropriate  representatives.^ 

§  533.  Words  describing  Object  of  Gift;  "Children/'  "Grand- 
children." 

"Words  descriptive  of  the  objects  of  a  gift,  and  more  particularly 

4.  Tower  v.  Butts,  1  S.  &  Stu.  181;  unborn  at  the  testator's  death.     Ras- 

2   H.   Bl.   399;    Jenkins  v.   Frever,   4  quin  v.  Hamersley,  137  X.  Y.  S.  578. 

Paige  47;   Hall  v.  Hancock,  15  Pick.  When    the    testator    uses    particular 

258;  2  Dev.  &  B.  Eq.  308;  Meigs  149;  language,  his  intention  shall  govern, 

Swift  V.  Duffield,  5  S.  &  R.  38,  Hawk-  upon  a  due  interpretation  of  the  will, 

ins  Wills  79;  2  Jarm.  Wills  185,  Bige-  Emery  Re,  3  Ch.  D.  300;   Starling  v. 

low's  note;  Starling  v.  Price,  16  Ohio  Price,  supra. 

St.  29;   Crook  v.  Hill,  L.  R.  6  H.  L.  5.  IMoares    v.    Meares,    4    Ired.    L. 

265     (this    last    referring    to    illogiti-  192;  supra,  §  480. 

mate     children);     Archer     v.    Jacobs,  6.   Brown,  Re,  154  N.  Y.  313;    137 

101  N.  W.  195,  125  Iowa  467;  Weth-  N.  Y.  S.  578;  Schmidt  v.  Schmidt,  84 

erill's   Estate,   63   A.   406,   214   Penn.  A.  629,  80  N.  J.  Eq.  364. 

150;   Crapo  v.  Price,  76  N.  E.  1043,  7.  See  Cavarly  Estate,  119  Cal.  410, 

190   Mass.    317;    54   A.    1072,    97    Me,  51  P.  629;  119  P.  496,  161  Cal,  353. 

427.      A    contingent    estate    may    be  8.  Branton  v.  Buckley,  54  So.  850, 

limited   to  persons  all  of  whom  are  99    Miss.    116;    Smith   v.   Joyner,    72 

G70 


CHAP.    II.]        DETAILS   OF   TESTAMENTAKY    CONSTRUCTION. 


533 


of  classes  of  objects,  deserve  our  notice.  And  first,  of  "  children," 
we  may  observe  that  the  popular  and  legal  sense  of  the  word  are 
ill  aecord.  A  gift  to  the  "  children  "  of  a  person  means,  therefore, 
presumably  one's  immediate  offspring,  and  does  not  extend  to 
"  grandchildren  "  ;  ^  while  "  grandchildren,"  in  like  manner,  is 
confined  to  the  immediate  offspring  of  offspring,  and  does  not  em- 
brace "  great-grandchildren."  ^  Such  rules  are  but  presumptive, 
however,  and  they  yield  of  course  to  a  contrary  intention  as  gath- 
ered from  the  context;  as  where,  for  instance,  such  explanatory 
words  as  "  legal  heirs  "  or  "  who  may  be  the  sui^iving  heirs  of 
the  body "  are  added  or  interchanged,  so  that  effect  is 
best  given  to  the  whole  disposition  by  supposing  "  chil- 
dren "  synonymous  with  issue  of  descendants  in  general.^  And 
other  words  of  more  extended  meaning  than  "  children "  or 
"  grandchildren  "  simply  may  enlarge  the  usual  scope  of  such  lan- 
guage,^ as  likewise  the  peculiar  expression  of  the  gift:  as  for  in- 
stance to  "  children  except  A  "   (A  being  a  grandchild)  ;  *  or,  as 


S.  E.  40,  136  Ga.  755;  Wayman  v. 
Follansbee,  98  N.  E.  21,  253  111.  602; 
98  N.  E.  1051 ;  Greene  v.  Rathbun,  34 
R.  I.  145  (life  estate).  And  see  Sala- 
man  R&,  (1908)  1  Ch.  4  (ventre  sa 
mere);  Villar  v.  Gilbey,  (1907)  A, 
C.   139;    §    531. 

9.  RadcliflFe  v.  Buckley,  10  Ves, 
195;  CliflFord  v.  Koe,  5  App.  Gas.  447; 
3  De  G.  &  J.  252;  1  Jarm.  Wills,  147; 
Hawkins  Wills  85;  Thomson  v.  Lud- 
ington,  104  Mass.  193;  3  Wall.  jr.  32; 
Osgood  V.  Lovering,  33  Me.  469;  3 
Comst.  540;  Low  v.  Harmony,  72  N. 
Y.  408;  2  McCart.  Ch.  198;  Castners 
Appeal,  88  Tenn.  St.  478;  19  Gratt. 
327;  Turner  v.  Withers,  23  Md.  18; 
Pugh  V.  Pugh,  105  Ind.  553;  Rey- 
nolds Re,  20  K  J.  429;  66  Vt.  21,  28 
A.  319,  44  Am.  St.  Rep.  817;  173  111. 
229;  Wills  v.  Foltz,  61  W,  Va.  262, 
12  L.  R.  A.  (N.  S.)  283,  56  S.  E. 
473;  Lawrence  v.  Phillipps,  71  N.  E. 
541,  186  Mass.  320;  Ruddell  v.  Wren, 


70  N.  E.  751,  208  111.  508;  Lyon  v. 
Baker,  50  S.  E.  44,  122  Ga.  189 ;  Stein- 
metz's  Estate,  45  A.  663,  194  Penn. 
611;  Tiffany  v.  Emmet,  53  A.  281, 
24  R.  I.  411;  86  N.  W.  10O4,  84  Minn. 
161;  44  S.  E.  605,  132  N.  C.  755;  Eddy 
V.  Matthewson,  78  A.  506,  32  R.  I. 
53;   77  A.  924,  228  Penn.  594. 

1.  Orford  v.  Churchill,  3  V.  &  B. 
59;  Hawkins  85;  2  Jarm.  150;  Hone 
V.  Van  Shaick,  3  Comst.  540;  Dool- 
ing  V.  Hobbs,  5  Harring.  405. 

2.  Houghton  v.  Kendall,  7  Allen  72 ; 
Sorver  v.  Brendt,  10  Penn.  St.  213; 
73  Cal.  594,  15  P.  297. 

3.  Prowitt  V.  Rodman,  37  X.  Y.  58 ; 
Hughes  V.  Hughes,  12  B.  Mon.  115. 

4.  Pemberton  v.  Parke,  5  Binn.  606 ; 
2  Duv.  334.  In  a  few  American 
States,  the  enlarged  sense  of  "  chil- 
dren," whether  as  including  "  grand- 
children," or  descendants  in  every 
degree,  is  favored  by  local  legislation. 
Hawkins     Wills     85,     Sword's     note. 


671 


§    534  LAW    OF    WILLS.  [PAET    VI. 

some  cases  have  held,  where  in  another  part  of  the  will  the  word 
''child"  is  distinctly  applied  to  a  grandchild,  or  "grandchild" 
to  a  great-grandchild." 

Some  have  claimed  that  a  ground  is  laid  for  construing  "  chil- 
dren "  of  A  to  include  grandchildren  or  descendants  where  there 
was  no  child  living  at  the  date  of  the  will.^  But  if  A  was  then 
living  and  capable  of  having  children  afterwards,  the  proper  sense 
of  the  word  is  not  changed/  though  it  might  well  be  if  A  were 
dead  when  the  will  was  made  and  the  testator  knew  that  grandchil- 
dren but  no  child  sui'vived  him.^  In  other  words,  a  strong  argu- 
ment arises  in  favor  of  the  unusual  and  more  extensive  sense, 
when  otherwise  the  testator's  gift  could  never  have  had  an  object, 
and  he  must  have  known  it.^  It  would  seem,  however,  more  nat- 
ural on  the  whole  to  give  to  "  children,"  if  not  the  precise  and 
natural  meaning,  a  loose  one,  as  extending  to  issue  or  descendants 
collectively,  with  a  right  of  representation,  rather  than  "  grand- 
children "  only.  And  the  rule,  in  brief,  is  to  take  the  word  "  chil- 
dren "  in  its  lit-eral  sense  unless  the  meaning  is  clearly  a  wider  one 
in  the  particular  case,  or  on  the  other  hand  the  gift  means  nothing 
at  all,  circumstances  outside  the  will  not  being  taken  into  consider- 
ation. Where  the  testator  names  the  children  in  his  bequest  to 
them,  still  less  should  the  grandchild  be  admitted  to  share,  whose 
parent  had  died  before  the  will  was  executed.^ 

§  534.  The  Same  Subject. 

By  "  children,"  whether  of  the  testator  or  some  other  person,  a 
will  is  generally  understood  to  denote  all  of  the  blood  offspring, 
those  of  the  whole  or  half  blood,  whether  by  one  marriage  or  an- 
other.^   But  children  by  affinity,  such  as  a  son's  widow,  are  prima 

*' Children"    is    primarily   a   word   of  Wills  85;    Smith  Re,  35   Ch.  D.   558. 

purchase,   but   it   may   be   a   word   of  7.  Moore  v.  Raisbeck,  12  Sim.  123; 

limitation,   and    include    descendants.  10  Ves.   198. 

2    .Jarm.    1'47,    Bigelow's    note.      See  8.  Berry    v.   Berry,    3    Giff.    134;    2 

Gilland    v.    Hallett,    87    A.    303,    240  Vern.   50. 

Tenn.  268.  9.  Fenn   v.   Death,   23   Bcav.    73;    3 

5.  Hussey  v.  Berkeley,   2   Ed.    194;  Jarm.    148. 

Amb.  CO.'J.  1.  McMiciiael   v.   Pye,    75    Ga.    189. 

6.  2    Jarm.    Wills    147;    Hawkins  2.    2    Jarm.    Wills    151;    Isaac    v. 

672 


CHAP.    II.]        DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    534 

facie  excluded ;  ^  and  so  are  step-children.*  Nor  are  illegitimate 
children  presumed  to  be  included ;  for  public  policy  aids  the  con- 
stant interpretation  of  the  courts  that  a  gift  to  "  children  "  means, 
on  the  face  of  it,  to  legitimate  children  only;^  into  which  class 
local  legislation,  however,  may  fairly  bring  those  legitimized  by 
the  subsequent  marriage  of  their  parents.'^  Where  illegitimacy  re- 
sults from  the  parent's  honest  error  in  contracting  a  marriago 
which  turns  out  void,  the  status  of  children  should  be  tenderly 
treated  in  construction,  if  possible.'^ 

But  context  or  surrounding  circumstances  may  defeat,  as  before, 
whatever  presumption  would  naturally  have  arisen ;  so  that  under 
a  gift,  children  may  be  restrained  to  those  of  some  particular  mar- 
riage, on  the  one  hand,^  and  on  the  other,  enlarge  so  as  to  include 
children  by  affinity,  or  step-children,  or  adopted '  or  even  illegiti- 


Hughes,  L.  R.  9  Eq.  191;  1  J.  &  H. 
389 ;  Barrington  v.  Tristram,  6  Ves. 
345. 

3.  Hussey  v.  Berkeley,  2  Ed.  194; 
2  Jarm.  151. 

4.  3  Barb.  Ch.  4C6,  475;  Cutter  v. 
Doughty,  23  Wend.  513;  Sydnor  v. 
Palmer,  29  Wis.  226;  108  Mass.  382, 
1  Bradf.  252;  145  Penn.  St.  637,  23 
A.  322.  But  extrinsic  evidence,  if  not 
the  clear  provisions  of  the  will,  may 
show  that   stepchildren  are   included. 

5.  The  rule  of  the  text  applies  to 
gifts  to  "  issue "  and  terms  of  rela- 
tionship generally.  See  Kenebel  v. 
Scrafton,  2  East,  530;  Ellis  v.  Hous- 
toun,  10  Ch.  D.  236;  Schoul.  Dom. 
Rel.  §  281;  Wilkinson  v.  Adam,  1  V. 
&  B.  422;  Hawkins  Wills  80;  supra, 
§  481;  Appel  v.  Byers,  98  Penn.  St. 
479;  2  Jarm.  Wills  217;  Kent  v. 
Barker,  2  Gray  535;  14  N.  J.  Eq.  159. 
"  The  question  comes  round  to  this," 
says  Lord  Eldon,  "  whether  upon  the 
contents  of  this  will  it  is  possible  to 
say   he   could   mean,   at   the   time   of 


making  that  will,  any  but  illegitimate 
children."  Wilkinson  v.  Adams,  1  V, 
&  B.  461,  468;   Hawkins  80. 

This  is  an  American  and  civil 
modification  of  the  English  common 
law,  which  still  appears  stubborn 
against  giving  a  status  to  those  whose 
misfortune  and  the  sin  of  their  par- 
ents caused  them  to  be  born  out  of 
wedlock.  Schoul.  Dom.  Rel.  §§  226, 
227;  Miller's  Appeal,  52  Penn.  St. 
113. 

7.  See  Elliott  v.  Elliott,  117  Ind. 
380,  10  Am.  St.  Rep.  54,  20  N.  E. 
264,  where  the  testator's  wife,  who 
bore  him  children  and  lived  with  him 
until  his  death,  was  ignorant  that  he 
had  abandoned  a  former  wife  abroad 
and  left  a  child  by  her  surviving  him. 
And  see  Crook  v.  Hill,  L.  R.  6  Ch. 
311;    §   481   supra. 

8.  2  Jarm.  Wills,  152. 

9.  Whether  an  adopted  child  would 
be  included  with  "  children  "  under  a 
will,  is  a  novel  question  growing  out 
of  a  policy  new  to  Anglo-Saxon  insti- 


43 


673 


§  534 


LAW    OF    WILLS. 


[part    VI. 


mate  children;^  provided  the  context  shows  a  corresponding  in- 
tention in  terms  or  leaves  the  alternative  of  a  gift  which  never 
could  have  had  an  object.  Of  illegitimate  children,  whose  stigma 
is  certainly  their  misfortune,  not  their  fault,  whether  bom  of  par- 
ents who  were  guilty  or  innocent,  we  may  add  that  courts  at  this 
day  waver  somewhat  in  applying  the  standard  of  construction; 
pitying,  oftener  than  formerly,  as  they  must,  the  lot  of  the  outcast, 
and  finding  in  the  local  policy,  as  they  often  may,  some  alleviation, 
of  the  ancient  hardships  which  attached  to  the  bastard.^     Illegiti- 


tutions.  It  is  held  that  such  children 
are  not  prima  facie  intended.  Schafer 
V.  Eneu,  54  Penn.  St.  304.  Cf.  John- 
son's Appeal,  88  Penn.  St.  346.  And 
see  Russell  v.  Russell,  84  Ala.  48,  3 
So.  900;  Smith  v.  Hunter,  99  N.  E. 
91,  86  Ohio  St.  106  (adopted  under 
statute  after  will  was  made)  ;  115 
Mass.  262;  64  N.  H.  407,  14  A.  557 
(adopted  child  as  "issue").  But 
the  criterion  must  be  found  in  the 
language  of  the  local  statutes  rela- 
tive to  adoption.  See  Schoul.  Dom. 
Rel.  4th  ed.  §  232.  One  might  per- 
haps be  decided  a  "  child  "  under  the 
will  of  the  adopting  parent  more 
readily  than  where  the  gift  was  from 
some  other  testator.  Barnhizel  v. 
Ferrell,  47  Ind.  335.  But  see  as  to 
"  heir  of  body,"  Sewall  v.  Roberts, 
115  Mass.  262.  And  see  Ingram  v. 
Southern,  L.  R.  7  H.  L.  408 ;  Hartwell 
V.  Teflft,  19  R.  I.  644,  35  A.  882;  §  481, 
and  cases  cited. 

1.  2  Jarm.  Wills,  217;  Drummond 
V.  Leigh,  30  Ch.  D.  110;  Stewart  v. 
Stewart,  31  N.  J.  Eq.  398.  Thus, 
where  the  gift  is  to  the  children  of  a 
person  known  to  be  dead  at  the  date 
of  the  will.  2  Mer.  419;  Gill  v. 
Shelley,  2  R.  &  My.  336.  Or  semble 
to  the  children  of  a  woman  known  to 
be   beyond   tlie   age   of   child-bearing. 


But  see  1  Sm.  &  G.  362.  Or  the  gift 
is  to  "  children,"  and  there  is  but 
one  legitimate  child.  Gill  v.  Shelley, 
supra.  Or  where  the  illegitimate 
children  were  identified  by  the  gift 
as  individuals  entitled  to  share.  2 
Hare,  282;  Hawkins  Wills  82,  83;  P. 
Wms.   529;    2   Jarm.   Wills,   217. 

See  Dwight  v.  Gibbs,  129  N.  Y.  S. 
961;  98  N.  E.  218,  254  111.  39  (step- 
children as  "grandchildren");  98 
N.  E.  1051,  212  Mass.  232;  98  N.  E. 
357  (illegitimate  grandchild  recog- 
nized ) . 

2.  The  old  rule  is  thus  expressed: 
"  Qui  ex  damnnto  coitu  nascuntur,  in- 
ter liberos  non  computentur."  3 
Anst.  684;  2  Jarm.  217.  But  while 
loose  and  conjectural  expressions  af- 
ford no  ground  for  admitting  illegit- 
imate children  to  gifts  under  a  will, 
the  true  point  of  inquiry  is  whether, 
according  to  a  true  interpretation  of 
the  will,  the  testator  meant  to  make 
such  persons  the  objects  of  his 
bounty.  2  Jarm.  217;  Sclioul.  Doui. 
Rel.  §  281.  Where  the  illegitimate 
child  is  sufficiently  described  or  neces- 
sarily implied  by  the  terms  of  the 
gift,  such  child  will  take.  Drum- 
mond V.  Leigh,  30  Ch.  D.  110,  com- 
menting upon  earlier  English  cases; 
Wilkinson  v.  Adams,  1  Ves.  &  B.  422; 


674 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTEUCTION. 


534 


mate  children  by  modem  policy,  are  peculiarly  favored  as  to  in- 


heriting from  maternal  relatives.* 


Gardner  v.  Heyer,  2  Paige,  11;  37 
Ch.  D.  695.  Both  in  England  and  the 
United  States  an  express  gift  to  the 
unborn  natural  child  of  a  woman  then 
pregnant  may  take  effect.  Crook  v. 
Hill,  3  Ch.  D.  773;  L.  R.  6  H.  L.  265; 
Knye  v.  Moore,  5  Harr.  &  J.  10; 
Schoul.  Dom.  Rel.  §  281.  But  a  gift 
to  an  illegitimate  child  or  children 
not  yet  begotten  is  obnoxious  to  the 
policy  of  the  law  in  this  country, 
probably,  as  it  is  in  England.  Holt 
V.  Sindrey,  L.  R.  7  Eq.  170;  Schoul. 
Dom.  Rel.  §  281.  And  yet  a  pro- 
vision for  future  illegitimate  children 
in  esse  at  testator's  death  is  upheld 
in  the  latest  English  cases.  35  Ch. 
D.  728.  See  Pearce  Re,  (1914)  1  Ch. 
254. 

A  common  description  of  "  chil- 
dren," however,  does  not,  as  a  rule,  let 
in  tnose  who  are  illegitimate  and  so 
reputed;  for  even  if  there  were  none 
legitimate  when  the  will  was  made, 
the  testator  may  be  supposed  to  refer 
to  the  future  birth  of  such;  and  pub- 
lic policy  appears  to  support  this 
construction,  if  possible,  even  though 
spurious  offspring  survive  the  tes- 
tator, and  no  legitimate  child  were 
born.  Durrant  v.  Friend,  5  De  G. 
&  S.  343;  Hall  Re,  35  Ch.  D.  551. 
Such  is  the  disfavor  of  the  law,  that 
the  mere  absence  of  other  objects  does 
not  let  in  a  bastard.  Mr.  Jarman 
submits  this  test  from  the  English 
cases,  that  in  order  to  let  in  illegiti- 
mate children,  under  a  gift  to  chil- 
dren, the  will,  as  applied  to  the  state 
of  facts  existing  when  it  was  made, 
must  make  it  clear  that  legitimate 
children  never  could  have  taken,   or 

6' 


that  its  terms,  when  so  applied  could 
never  have  taken  effect  if  confined  to 
legitimate  children.  2  Jarm.  234.  But 
he  admits  reluctantly  that  this  prin- 
ciple has  not  been  invariably  fol- 
lowed, lb.  Sometimes  the  construc- 
tion favored  as  to  a  third  person's 
will,  is  to  recognize  illegitimate  chil- 
dren born  before,  but  none  born  after 
the  testator's  death.  Harrison  Re, 
(1894)     1    Ch.    561. 

Extrinsic  evidence  is  only  admis- 
sible to  show  that  illegitimate  chil- 
dren have  at  the  date  of  the  instru- 
ment acquired  the  reputation  of  being 
legitimate,  or  that  only  illegitimate 
children  fulfilled  the  description 
eitlier  when  the  will  was  made  or 
when  the  testator  died.  2  Jarm.  217, 
Bigelow's  note;  Wilkinson  v.  Adam, 
supra;  Gardner  v.  Heyer,  2  Paige  11. 
Some  have  laid  it  down  that  legiti- 
macy being  a  question  not  of  reputa- 
tion, but  of  fact,  a  child  afterwards 
discovered  to  be  illegitimate,  even 
though  passing  as  legitimate  when 
the  will  was  made,  cannot  share  in  a 
gift  to  children.  Hawkins  Wills  80. 
It  seems  fair,  however,  that,  if  the 
testator  was  neither  guilty  nor  de- 
ceived about  a  child  reputed  as  his 
own  when  the  will  was  made,  but  the 
gift  stands  to  the  reputed  child  or 
children  of  another  person,  it  ought 
not  to  fail  of  effect  merely  because 
such  child  or  children  prove  after- 
wards illegitimate.  See  Dane  v. 
Walker,   109  Mass.   179. 

3.  Hayden  v.  Barrett,  172  Mass. 
472,  70  Am.  St.  Rep.  295,  52  N.  E. 
530. 


§  535 


LAW    OF    WILLS. 


[part   VI. 


§  535.  "Issue,    "Descendants,"  etc.,  as  Objects  of  a  Gift. 

A  gift  to  ''  issue/'  as  a  phrase  of  law,  imports  prima  facie  de- 
scendants of  every  degree  from  the  common  ancestor,  including 
children  and  those  more  remote ;  *  nor  does  the  addition  of  the 
words  "  begotten  by  A"  restrict  this  sense  necessarily.^  But  where 
the  "  parent "  of  such  issue  is  associated  in  the  context,  the  lan- 
guage imports  rather  that  children  alone  were  intended ;  "  and  this 
narrower  but  more  popular  meaning  may  arise  from  other  turns 
of  expression  defining  the  character  of  a  gift ;  ^  though  the  whole 
tenor  of  the  will  must  determine  each  decision.^  In  rare  cases  con- 
sistency confines  the  construction  of  issue  to  "  grandchildren,"  ex- 
tending no  further  in  degree.^    A  devise  of  real  estate  or  a  bequest 


4.  Davenport  v.  Hanbury,  3  Ves. 
258;  19  Md.  197;  Hawkins  Wills  86; 
2  Jarm.  101,  and  Bigelow's  note;  2 
Wms.  Exrs.  1196;  17  N.  J.  Eq.  475: 
Taylor  v.  Taylor,  63  Penn.  St.  481,  3 
Am.  Rep.  565;  Maxwell  v.  Call,  2 
Marsh.  119;  Soper  v.  Brown,  136  N. 
Y.  244,  32  N.  E.  768,  32  Am.  St.  Rep. 
731;  Pearce  v.  Rickard,  IS  R.  I.  142, 
26  A.  38,  49  Am.  St.  Rep.  755,  19 
L.  R.  A.  472.  In  a  limitation  to 
"  issue  or  children  "  the  word  "  issue  " 
enlarges  its  scope.  Hall  v.  Hall,  140 
Mass.  267,  2  N.  E.  700.  An  indefinite 
failure  of  issue  is  favored  in  con- 
struction in  119  Penn.  St.  108,  12 
A.    806. 

5.  Evans  v.  Jones.  2  Coll.  516;  17 
N.  J.  Eq.  475. 

6.  Sibley  v.  Perry,  7  Ves.  522 ;  Bar- 
stow  V.  Goodwin,  2  Bradf.  (N.  Y.) 
416;  Pruen  v.  Osborne,  11  Sim.  132; 
1  Dem.  (N.  Y.)  217;  74  Penn.  St.  173. 
15  Am.  Rep.  545;  King  v.  Savage,  121 
Mass.  303 ;  McPherson  v.  Snowdon,  19 
Md.  197;  152  Penn.  St.  18,  25  A.  231. 
The  rule  applies  to  either  a  devise  or 
l)equ(!8t.  19  Beav.  417;  Hawkins  88. 
Tlie  word  '■  childn^n  "  may  be  enlarged 


to  "  issue  "  where  the  two  terms  are 
interchanged  in  a  will.  2  Jarm.  107 ; 
Amb.  555 ;  supra,  §  533 ;  5  Munf.  440. 

7.  Fairchild  v.  Bushell,  32  Beav. 
158;  Duncan  v.  Harper,  4  S.  C.  76; 
Palmer  v.  Dunham,  125  N.  Y.  68,  25 
N.  E.  1081;  173  111.  229,  50  N.  E.  704. 

8.  Where  a  gift  is  to  nephews, 
their  "  issue "  to  take  the  parent's 
legacy,  "  issue "  means  properly  de- 
scendants taking  by  right  of  repre- 
sentation. 152  Mass.  67,  9  L.  R.  A. 
211,  25  N.  E.  96. 

9.  Chwatal  v.  Schreiner,  148  N.  Y. 
683. 

See,  further,  61  A.  641,  212  Penn. 
91  (heirs  of  the  body)  ;  Ingles  v.  Mc- 
Cook,  68  N.  J.  Eq.  27,  59  A.  630 
("lawful  issue");  69  N.  Y.  S.  936; 
Birks  Re,  (1900)  1  Ch.  417;  94  N.  E. 
632,  201  N.  Y.  S.  124 ;  Security  Trust 
Co.  V.  Lovett,  79  A.  616,  78  N.  J.  Eq. 
445 ;  Rasquin  v.  Hamersley,  137  X. 
Y.  S.  578  ("issue"  flexible  in  con- 
struction) ;  Winter  v.  Dibble,  95  N. 
E.  1093.  251  111.  200:  138  S.  W.  558; 
97  N.  E.  758,  211  Mass.  105;  Guy  v. 
Osborne,  74  S.  E,  617,  91  S.  C.  291 


676 


CHAP.    TI.]        DETAILS   OF   TESTAMENTARY    CONSTKUCTION.  §    53G 

of  personalty  appears  to  follow  the  same  rule  in  this  respeot;  ^  for 
in  a  will  "  issue  "  is  not  so  rigid  an  expression  as  it  would  be  in  a 
deed  or  grant. 

As  for  ''  descendants,"  this  word  cannot  in  a  will  be  construed 
to  include  any  but  lineal  heirs,  without  clear  indications  in  the 
will  of  a  different  purpose.^  But  children,  grandchildren  and 
their  children  to  the  remotest  degree  are  thus  comprehended.' 
"  Descendants  "  like  "  issue  "  is  a  very  general  word,  but  compe- 
tent authorities  pronounce  it  less  flexible  than  "  issue  "  in  con- 
struction, requiring  a  stronger  context  to  confine  it  to  children.^ 

§  535a.  Surviving  Spouse  as  Object  of  a  Gift. 

A  gift  to  one's  "'  widow  "  is  not  necessarily  confined  in  construc- 
tion to  the  wife  living  when  the  will  was  made.*^ 

§  536.  Collateral  Relatives  as  Objects  of  a  Gift. 

Now  as  to  the  words  which  denote  collateral  relatives  as  objects 
of  a  gift.  By  "  brothers,"  "  sisters,"  and  even  "  nephews,"  or 
"  nieces,"  is  prima  facie  meant  not  those  of  the  whole  blood  alone, 
but  half-brothers  and  half-sisters,  or  children  of  a  half-brother  or 
half-sister;  ^  and  so  with  the  more  remote  kindred.     For  the  policy 

(intent  made  clear)  :  72  S.  E.  501,  90  "descendant"     of     the     testator.       1 

S.  C.  8.  Bradf.   314.     Nor  collateral  relatives 

Where    there    was   more    than    one  generally.      For   a    peculiar   meaning 

child  or  grandchild  of  A  and  the  tes-  undo-    the    Georgia    statutes,    see    25 

tator  knew  but  one  of  them,  that  one  Ga.  420.     See  138  S.  W.  558. 

takes.     Abbott  v.  Lewis,  88  A.  98,  77  3.    Ambl.    397;    Bouv.    Diet.    "  De- 

N.   H.   94.  scendants "  ;    2    Jarm.    Wills    98-100. 

1.  2  Jarm.  Wills  102 ;  Cook  v.  The  word  "  offspring "  is  prima 
Cook,  2  Vern.  545 ;  King  v.  Savage,  facie  synonymous  with  "  issue,"  as  a 
121  Mass.  303.  A  devise  to  "  male  word  of  limitation  and  not  of  pur- 
issue  "  includes  all  male  lineal  chase.  Allen  v.  Markle,  36  Penn.  St. 
descendants.  Wistar  v.  Scott,  105  117;  3  Drew.  7.  See  29  Beav.  6,  18. 
Penn.   St.  200,  51  Am.  Rep.   197.  4.  Ralph  v.  Carrick,  11  Ch.  D.  873. 

2.  Baker  .  v.  Baker,  8  Gray  101 ;  4a.  Meeker  v.  Draffen,  94  N.  E. 
Barstow  v.  Goodwin,  2  Bradf.  (N.  Y.)  626,  201  N.  Y.  205  (testator  marry- 
413;   Van  Beuren  v.  Dash,   30  N.  Y.  ing  again). 

393.     Thus,  a  sister's  child   is  not  a  5.  Hawkins    Wills    86;    Grieves    v. 

677 


§  536 


LAW    OF    WILLS. 


[part   VI. 


of  our  law  to  admit  general  kindred  of  the  whole-blood  and  half- 
blood  equally  to  the  inheritance  when  of  the  same  degree  is  deeply 
graven  in  modern  legislation.^  If  the  intent  of  the  will  be  clear 
enough,  even  illegitimate  kindred  of  a  collateral  class  may  be 
deemed  intended.^ 

N^otwithstanding  the  equivocal  sense  of  nepos  in  Roman  juris- 
prudence, "  nephew  "  means  in  English  law  the  son  and  "  niece '"' 
the  daughter  of  a  brother  or  sister;  and  great-nephews  or  great- 
nieces  are  not  embraced  by  the  term.*  And  as  a  gift  is  naturally 
to  blood  relatives,  a  nephew  or  niece  by  marriage,  that  is  the 
nephew  or  niece  of  the  testator's  husband  or  wife,  is  prima  facie 
excluded ;  *  as  also  would  be  the  wives  or  widows  of  blood  nephews.' 
A  similar  presumption  against  great-grand-nephews  is  afforded 
where  the  gift  is  to  "  grand-nephews  "  simply.^ 


Rawley,  10  Hare  63;  2  Jarm.  Wills 
154:  61  How.  N.  Y.  Pr.  48;  2  Jones 
Eq.  202;  1  McCord  406;  2  Yerg.  115; 
70  X.  J.  Eq.  10,  62  A.  672. 

6.  See  Cotton  v.  Scarancke,  1  Mad. 
45.  "  Brethren,"  as  a  word  of  com- 
mon gender,  has  been  held  to  embrace 
both  brothers  and  sisters.  1  Rich.  Eq. 
78.  A  devise  to  "  brothers  and  sis- 
ters "  excludes  a  niece,  the  issue  of  a 
sister  who  was  dead  at  the  date  of 
the  will.  11  Phila.  144.  But  as  to 
property  to  be  "  equally  divided  among 
my  brothers  and  sisters  and  their 
heirs,"  see  137  Mass.  409,  where  the 
right  of  representation  was  extended 
to  the  issue  of  such  a  sister.  See  also 
L.  R.  11  Eq.  366,  note;  136  N.  W.  134. 

7.  See  Parker  Re,  (1897)  2  Ch.  208. 
This  may  extend  in  construction  to 
relatives,  quite  distant  tliough  of  ille- 
gitimate blood.  vSeale-Hayne  v.  Jod- 
rell.  (1891)   A.  C.  304. 

8.  Ambl.  514;  Shelley  v.  Bryer,  Jac. 
207;    Crook  v.   Whitley,   7   D.   M.   G. 


490;    2   Yeates,   196;    2  Jarm.   Wills, 
152;   43  Ch.  D.  569. 

9.  Hawkins  Wills,  85;  Smith  v.  Lid- 
iard,  3  K.  &  J.  252;  Green's  Appeal, 
42  Penn.  St.  30;  39  Ch.  D.  614;  Root's 
Estate,  187  Penn.  St.  118;  40  A.  818. 

1.  Goddard  v.  Amory,  147  Mass.  71; 
16  N.  E.  725. 

2.  Waring  v.  Lee,  8  Beav.  247. 
See,  also,  White  v.  Old,  75  S.  E. 
182,  113  Va.  709,  Branton  v. 
Buckley,  54  So.  850;  99  Miss.  116 
(unnamed  brothers  and  sisters). 

The  rule  of  the  text  admits  of  the 
usual  qvialifications.  Thus  "  nephews 
and  nieces  on  both  sides  "  may  be  con- 
strued to  include  those  by  marriage- 
Frogley  v.  Phillips,  3  De  G.  F.  &  J. 
466;  101  N.  Y.  S.  652.  And  the  same 
inference  arises  where  the  testator 
had  no  nephews  or  nieces  of  his  blood, 
so  that  the  gift  would  otherwise  have 
meant  nothing.  Sherratt  v.  Mount- 
ford,  L,  R.  8  Ch,  928;  L.  R.  15  Eq, 
305.     So  may  the  context  of  a  will 


678 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   COXSTRUCTION.  §    537 

The  word  "  cousins  "  may  literally  comprehend  a  large  number 
of  collateral  kindred;  for  it  denotes  the  son  or  daughter  of  the 
brother  or  sister  of  one's  father  or  mother ;  so  that  one  may  have 
both  paternal  or  maternal  cousins  of  equal  degree.  For  convenience 
it  is  presumed  that  a  testamentary  gift  to  "  cousins  "  is  meant  to 
include  first  cousins  only,  if  there  be  such,^  and  the  nearer  degree 
rather  than  that  more  remote.  JSTor  does  a  gift  to  "  first  cousins," 
or  cousins  german  (i.  e.  to  the  children  of  brothers  or  sisters), 
include  first  cousins  once  removed  any  more  than  a  gift  to  "  cous- 
ins "  simply ;  *  though  a  gift  to  "  all  the  first  and  second  cousins  " 
would  embrace  all  within  the  degree  of  second  cousin,  and  hence 
take  in  equally  the  fir&t  cousins  once  removed  and  the  first  cousins 
twice  removed.^ 

§  537.  "  Relations,"  "  Family,"  etc.,  as  the  Objects  of  a  Gift. 

The  word  "  relations  "  or  "  relatives  "  has  of  itself  no  precise 
reference  to  legal  succession,  nor  indeed  any  precise  sense  at  all, 
since  kindred  to  the  remotest  degree  might  thus  be  spoken  of.  But 
for  convenience,  and  in  order  to  prevent  a  gift  from  being  void 
for  uncertainty,  it  is  commonly  confined  to  those  who  would  take 
under  the  statutes  of  distribution  ^  (or,  if  a  devise,  under  the  stat- 
utes of  descent '')  unless  the  will  discloses  a  plain  purpose  to  the 

show  tliat  grand-nephews  are  included  kin   or  by   representation   to  next   of 

in  a  gift  to  nephews.    57  Conn.  24 ;  17  kin,  may  be  thus  included.    Rayner  v. 

A.  173.  Mowbray,  3  Bro.  C.  C.  234;  1  Bro.  C. 

3.  Stoddart  v.  Nelson,  6  D.  M.  &  G.  C.  31;  Drew  v.  Wakefield,  54  Me.  291; 
68;  31  Beav.  305;  Hawkins  Wills,  86;  Hawkins  Wills,  103;  Varrell  v.  Wen- 
2  Jarm.  Wills,  152.  dell,  20  N.  H.  431;  2  Jarm.  Wills,  121, 

4.  Sanderson  v.  Bayley,  4  My.  &  Cr.  and  Bigelow's  note ;  3  Mer.  437 ;  11 
56.  Phila.  85.     And  see  "  poor  relatives  " 

5.  Hawkins  Wills,  86,  87;  Mayott  V.  thus  construed  as  though  "poor" 
Mayott,  2  Bro.  C.  C.  125;  1  Sim.  &  were  omitted.  M'Neiledge  v.  Gal- 
Stu.  301;  Charge  v.  Goodyer,  3  Russ.  braith,  8  S.  &  R.  45;  2  Jarm.  126; 
140.  Widmore  v.  Woodroffe,  Amb.  636.    As 

For   the   method   of  computing   de-  to  "  blood  relatives,"  see  Cummings  v. 

grees  of  kindred,  see  chart  at  end  of  Cummings,   146  Mass.   501,   16  N.   E. 

Schoul.  Exrs.  &  Admrs.    (Vol.  II).  401;   105  N.  W.  1064,  126  Wis.  660. 

6.  Those  entitled  either  as  next  of  7.  Thwaites  v.  Over,  1  Taunt.  263; 

679 


§    537  LAW    OF    WILLS.  [pART    VI. 

contrary.^  A  gift  to  one's  relatives,  however,  does  not  prima  facie 
refer  to  husband,  wife,  or  marriage  connections,  but  to  those  only 
of  one's  one  blood ;  ^  though  relations  of  the  half-blood  may  share.* 
A  gift  to  "  those  related  to  "  a  person  or  to  "  near  relations  "  may 
be  deemed  synonymous  with  "  relations  "  or  "  relatives."  ^  But 
the  rules  are  adopted  for  convenience,  where  a  definite  class  should 
be  set  apart  as  objects  of  one's  bounty;  and  a  charitable  gift  to 
relations  by  way  of  continuing  a  trust,  is  not  thus  limited ;  nor 
has  a  power  to  appoint  property  to  relatives  been  always  thus  con- 
fined if  it  carried  a  right  of  selection.*  A  gift  to  "  nearest  rela- 
tions "  prefers  brothers  to  nephews  or  niece.* 

"  Family  "  in  a  will  sometimes  denotes  the  testator's  children 
and  their  respective  children,  and  even  the  wife  of  a  son,  as  form- 
ing one  household,  and  all  living  together.^  But  this  is  out  of 
deference  to  what  the  testator  appeared  to  have  intended.  The 
term  "  family  "  is  indeed  a  flexible  one,  and  may,  under  different 
circumstances,  mean  a  man's  household,  consisting  of  himself,  his 
wife,  children,  and  servants ;  it  may  confine  its  scope  to  those 

M'Xeiledge  v.  Barclay,  11  S.  &  R.  103.  degree  in  blood.     Smith  v.  Campbell, 

The   rule  is  more   frequently   applied  19  Ves.  400;  Ennis  v.  Pentz,  3  Bradf. 

to  bequests,  as  in  the  preceding  note.  382 :  2  Jarm.  Wills,  124. 

8.  See  3  Bradf.  (N.  Y.)  382;  1  Bro.  3.  Harding  v.  Glyn,  1  Atk.  469.  Cf. 
C.  C.  32,  note.  On  the  other  hand.  Pope  v.  Whitcombe,  3  Mer.  689;  4 
the  context  may  confirm  the  prima  Euss.  297;  Varrell  v.  Wendell,  20  N. 
facie  construction.    20  N.  H.  431.  H.  435.     And  see  2  Jarm.  127,  128. 

9.  2  Jarm.  Wills  125,  154;  Kimball  Tt  is  held  that  the  relations  take 
V,  Story,  108  Mass.  382;  1  Bro.  C.  C.  equally  per  capita,  the  statute  being 
31;  Ennis  v.  Pentz,  3  Bradf.  382;  employed  only  to  define  the  objects 
Cleaver  v.  Cleaver,  39  Wis.  96:  20  and  not  the  shares.  Tifiin  v.  Long- 
Am.  Rep.  30;  Hibbert  v.  Hibbert,  L.  man,  15  Beav.  275.  But  cf.  Hawkins 
R.  18  Eq.  504;  83  Me.  197,  13  L.  R.  A.  Wills,  105,  citing  9  H.  L.  C.  1.  And 
37,  22  A.  115.  scoe  2  Jarm.  Wills,  122-124.     The  tes- 

1.  Supra,  §  536;   2  Jarm.  124,  152.      tator     may     have     indicated     plainly 

2.  Whitohorne  V.  Harris,  2  Ves.  Sen.  whether  the  relations  sliall  share 
527;    Handley  v.   Wrightson,   60  Md.      equally  or  not. 

198.     But  a  gift  to  "  nearest  "   rela-  4.  Locke  v.  Locke,  45  N.  J.  Eq.  97, 

tives  seems  equivalent  to  next  of  kin,      16  A.  49. 

excluding  the  right  of  representation,  5.    Bradlee  v.   Andrews,    137   Mass. 

but  perhaps  admitting  all  of  the  same      r,Q. 

680 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    537 

living  in  one  domestic  establishment,  excluding  those  who  live  else- 
where, though  of  the  same  degree ;  ®  it  may  mean  one's  wife  and 
children,  or  his  children,  excluding  the  wife;  or,  if  he  has  no 
wife  and  children,  it  may  mean  his  brothers  and  sisters,  or  his  next 
of  kin;  or  it  may  mean  the  genealogical  stock  from  which  he 
sprung;  since  all  these  applications  of  the  word  and  even  others 
are  found  in  common  parlance.^  It  refers  of  course  to  two  or  more 
persons.^  The  description  of  "  family "  may  sometimes  be  so 
vague  that  the  gift  will  fail  altogether,^  and,  on  the  other  hand, 
be  upheld  like  a  gift  to  "  relations."  ^  A  bequest  to  "A's  family  " 
or  to  the  "  family  of  A"  is  most  readily  supposed  to  denote  A's 
children,  if  he  have  any,  or  his  next  of  kin ;  ^  and  a  devise  would 
refer  correspondingly  to  "  heirs,"  or  "  heirs  of  tlie  body  " ;  ^  while 
a  gift  to  ''  family  "  of  personalty  and  realty  blended  may  designate 
next  of  kin  as  to  the  one  kind,  and  heir  as  to  the  other.*  A  devise 
of  land  to  ''A  and  his  family  "  would  consequently  seem  to  import 
an  estate  tail  at  common  law ;  ^  and  so,  too,  a  bequest  of  personalty 
to  ^'A  and  his  family  "  would  operate  as  a  gift  to  A  for  life,  with 
remainder  to  A's  children,^  though  this  awkward  construction  is 
sometimes  avoided  by  regarding  the  will  as  intending  rather  a 
joint  tenancy  between  A  and  such  of  his  children  as  survive  the 

6.  Wood  V.  Wood,  63  Conn.  324,  28      J.  159;  2  Jarm.  Wills,  90,  91;  Harper 
A.   520.  V.  Phelps,  21  Conn.  259  L.  R.  6  P.  C. 

7.  Blackwell  v.   Bull,   1  Keen,   181,      381. 

per   curiam;    2    .Jarm.    Wills    90.      A  1.    f^iipra,    p.    679;    9    Ves.    319;    2 

will  may  employ  the  word  "  family  "  Jarm.  95. 

in  the  sense  of  including  an  illegiti-  2.   Hawk.    Wills,    89;     Gregory    v. 

mate  child.     L.  R.  6  Ch.  597;  supra,  Smith,  9  Hare,  708;  Barnes  v.  Patch, 

§    543.     And    see,    as    to    illegitimate  8    Ves.    604;    Heck   v.    Clippenger,    5 

relatives,  Jodrell  Re,  44  Ch.  D.  590;  Penn.  St.  388;  3  W.  Va.  610. 

afr.    App,    Cas.    (1891)    304.      But   a  3.  Hob.   29;   Wright  v.  Atkyns,   17 

child  of  H,  born  after  the  testator's  Ves.  255;   Coop.  122;   2  Jarm.  Wills, 

death,  is  not  included  under  a  devise  91. 

to  "H  and  family."     64  N.  H.   526,  4.  White  v.   Briggs,   15   Sim.   17. 

15  A.  136.  5.  29  Beav.  657. 

8.  55  Conn.  239,  11  A.  36.  6.  26  Beav.   195,  485,  per  Romilly, 

9.  See  Tolson  v.  Tolson,   10  Gill  &  M.  R.     See  same  c,  post. 

681 


§    539  LAW    OF    WILLS.  [PAET    VI. 

testator.^  On  the  whole,  this  word  "  family  "  is  one  of  variable 
meaning,  and  for  its  true  import  in  any  case  we  must  consider  the 
general  language  of  the  will,  read  in  the  light  of  relevant  circum- 
stances existing  at  its  execution.^ 

§  537a.  "Beneficiaries''  as  the  Objects  of  a  Gift. 

"  Beneficiaries  "  are  defined  as  those  receiving  or  entitled  to  re- 
ceive a  benefit  under  the  will.^ 

§  538.  Taking  per  Capita  or  per  Stirpes. 

That  distinction  so  familiar  in  the  distribution  of  the  estates  of 
decedents,  namely,  between  per  capita  and  per  stirpes,  comes  now 
into  view.  Where  all  the  persons  entitled  to  share  stand  in  the 
same  degree  of  kin  to  the  decedent,  as,  for  instance,  all  grandchil- 
dren, and  claim  directly  from  him  in  their  own  right,  and  not 
through  some  intermediate  relation,  they  take  per  capita,  that  is, 
in  equal  shares,  or  share  and  share  alike.  But  where  they  are  of 
different  degrees  of  kindred,  as  in  the  case  of  grandchildren  and 
great-grandchildren,  the  latter  representing  some  deceased  grand- 
child like  A,  they  take  per  stirpes,  or  according  to  the  stock  they 
represent ;  and  hence  the  great-grandchildren  of  A  may  take  the 
dead  parent's  share,  while  other  great-grandchildren  are  excluded 
because  their  parent  B,  C,  or  D  is  living.  When  persons  take  as 
individuals  they  are  said  to  take  per  capita;  when  by  right  of  rep- 
resentation, per  stirpes} 

If  this  distinction  is  embodied  in  the  local  statutes  which  dis- 

7.  Parkinson's  Trusts,  1  Sim.  N.  S.  129  N.  Y.  S.  814  (family  separated). 
242.  And  see  Corlass  Re,  1  Ch.  D.  9.  Jones's  Estate,  134  N.  Y.  S.  859. 
460.  Where    the    particular    beneficiary    is 

8.  Corsgrove  v.  Corsgrove.  69  Conn.  made  clear,  no  other  will  be  taken  for 
416,  38  A.  219;  63  Conn.  324,  28  A.  carrying  out  better  the  testator's  pur- 
520.  pose.     Mason  v.  General  Hospital,  93 

See  further,  65  A.  761,  102  Me.  63;  N.  E.  637,  207  Mass.  419. 
TiflFany  v,  Emmet,  53  A.  281,  24  R.  I.  1.  2  Black.    Com.  218;  3  Ves.  257; 

411  ("kindred");  Henderson  v.  Hen-  Bouv.  Diet.;  2  Jarm.  Wills,  101,  106, 

derson,   77  A.   348,  77  N.  J.  Eq.   317  112;  Guild  v.  Allen,  67  A.  855,  21  R. 

("relations");    Farnam   v.    Farnam,  I.  430. 
77  A.  70,  83  Conn.  369    ("family")  ; 

682 


CHAP.    II.]        DETAILS   OF   TESTAMENTARY    CONSTEUOTIOlSr.  §    538 

tribute  an  intestate  estate,  a  testator  may  expressly  contemplate  it 
in  his  will  or  the  law  presumes  it  for  him  in  his  silence.  One  may 
thus  exclude  the  legal  inference  of  representation  by  naming  the 
grandchild  of  a  deceased  child  with  children  or  specified  indi- 
viduals as  all  to  take  "  share  and  share  alike,"  or  by  some  similar 
expression ;  or  he  may  on  the  other  hand  give  representation  its 
natural  force  silently  or  by  saying  that  such  grandchild  shall  "  take 
his  parent's  share,"  "  take  by  right  of  representation,"  and  the 
like.^  The  statute  policy  of  the  jurisdiction  must  determine  how 
far  the  rule  per  stirpes  should  be  carried,  when  the  assent  of  the 
testator  is  to  be  inferred  from  the  language  or  the  silence  of  his 
will.  But  aided  by  this  policy  our  courts  raise  certain  presump- 
tions. 

Thus  under  a  gift  to  "  descendants  "  (taking  the  usual  broad 
scope  of  this  word '')  equally,  though  children  and  grandchildren 
or  great-grandchildren  be  embraced,  some  with  a  living  parent, 
and  others  with  none,  the  issue  of  every  degree  are  entitled  to  an 
equal  share,  simply  because  the  will  has  so  directed.*  x\nd  the 
same  holds  true  of  a  gift  to  one's  "  issue  "  in  the  broad,  sense  of 
this  word  as  synonymous  with  descendants,  or  nearly  so.^  On  the 
other  hand,  if  the  gift  is  directed  to  be  in  the  statutory  propor- 
tions,^ or  if  it  expresses  the  idea  of  a  distribution  per  stirpes  among 
specified  persons,  or  some  one's  "  descendants,"  or  "  issue,"  as  when 
it  directs  expressly  that  any  child  of  a  deceased  member  of  the  class 
shall  take  his  parent's  share  by  right  of  representation,'^  the  will 
should  operate  accordingly.    As  to  real  estate,  corresponding  max- 

2.  Public  policy  of  the  statutes  of  4.  Butler  v.  Stratton,  3  Bro.  C.  C. 
descent  and  distributions,  aided,  it  367;  2  Jarm.  100;  2  Jur.  N.  S.  443. 
may  be,  by  a  testator's  own  expres-  5.  Sup7-a,  §  535 ;  Davenport  v.  Han- 
sion,  may  thus  justify  the  right  of  bury,  3  Ves.  257;  2  Jarm.  Wills,  101; 
representation  as  to  the  share  which  Pearce  v.  Rickard,  18  R.  I.  142 ;  49 
the  parent  who  predeceases  the  tes-  Am.  St.  Rep.  ^55^  19  L.  R.  A.  472,  26 
tator  would   have  taken   if   surviving  A.  38. 

him.  6.  Smith  v.  Pepper,  27  Beav.  86. 

3.  Supra,  §  535.  7.   Robinson  v.  Shepherd,   32   Beav. 

665;  10  Jur.  N.  S.  53;  2  Jarm.  100. 

683 


§    539  LAW    OF    WILLS.  [PAET    VI. 

ims  would  seem  logically  to  apply;  but  we  must  remember  that 
the  statute  policy  of  descent  coincides  not  wholly  with  that  of  dis- 
tribution, and  the  old  will  which  favors  the  heir  may  still  hamper 
the  local  construction.^  The  due  interpretation  of  a  will  requires 
sometimes  that  personalty  should  be  divided  per  capita,  and  the 
realty  per  stirpes.^ 

In  general,  legatees  will  take  per  capita  rather  than  per  stirpes, 
or  vice  versa,  where  it  is  clearly  apparent  what  the  testator  in- 
tended.^ 

§  539.  The  Same  Subject. 

Personal  representatives,  or  the  next  of  kin,  under  the  Statute 
of  Distributions,  take  naturally  per  capita  by  the  policy  of  English 
law ;  hence  an  express  provision  that  the  "  personal  representa- 
tives "  of  a  child  or  children,  shall  take  per  stirpes  and  not  per 
capita  has  been  taken  to  indicate  that  the  testator  used  "'  personal 
representatives  "  in  the  sense  of  ''  descendants."  ^  "  Heirs,"  on 
the  other  hand,  or  '^  bodily  heirs,"  "  heirs  and  assigns,"  and  such 
like  expressions,  signify  prima  facie  that  the  gift  was  to  take  effect 
per  stirpes} 

But  all  such  construction  gives  way  if  another  intent  be  de- 
te<?ted;  and  detached  words  afford  no  constant  test  of  what  the 
testator  really  intended.  As  where  one  gives  ''  equally,"  or  "  share 
and  share  alike,"    to    his    lawful   "  heirs  "  ;  *  though  once  more 

8.  See  2  Jarm.  Wills,  102.  Jones  Eq.  377.    "  Heirs  or  legal  repre- 

9.  Hayes  v.  King,  37  X.  J.  Eq.  1.  sentatives  "  is  a  flexible  expression. 
As  to  "legal  heirs,"  where  children  See  27  Pcnn.  St.  55;  118  111.  403,  9 
and    the    representatives    of    children  N.  E.  210. 

are  included,  see  Healy  v.  Healy,   70  4.  2     .Jarm.    Wills,    195,     Bigelow's 

Conn.  467,  39  A.  793.  note;  Puryear  v.  Edmonson,  4  Heisk. 

1.  See  Verplanck  Re,  91  N.  Y.  439.  43;    Tuttle    v.    Puitt,    68   N.   C.    543; 

2.  Atherton  v.  Crowther,  19  Beav.  Richards  v.  Miller.  62  111.  417;  Allen  v. 
448.  Allen,  13  S.  C.  512;    36  Am.  Rep.  716; 

3.  Balcom  v.  Haynes,  14  Allen,  204;  Scott's  Estate,  163  Penn.  St.  165,  29 
Osburn's  Appeal,  104  Penn.  St.  637;  A.  877;  143  N.  Y.  125.  38  N.  E.  104; 
Cook  V.  Catlin,  25  Conn.   387;   Swin-  Stone  i?e,   (1895)   2  Ch.  196. 

burne  lie,  16  R.  I.  208,  14  A.  850;   2 

684 


CHAP.    II.]       DETAILS  OF   TESTAMENTARY   CONSTEUCTION.  §    540 

*•  equally."  or  "  share  and  share  alike,"  might  fitly  refer  in  a  given 
case  to  a  division  among  a  class  as  per  stirpes.^  On  the  other 
hand,  where  the  gift  is  to  those  who  would  take  in  case  of  intestacy, 
or  to  "  next  of  kin  "  in  classes,  leaving  it  doubtful  what  should  be 
their  due  proportions,  it  is  held  in  the  United  States  the  safer  rule 
to  construe  "  next  of  kin  "  in  close  conformity  with  the  Statute  of 
Distributions,  so  as  to  give  representation  and  the  division  per 
stirpes  its  usual  effect  under  the  local  policy.^  These  presumptions 
do  not  seem  to  vary  in  force  whether  the  heirs,  next  of  kin,  etc., 
referred  to  are  those  of  the  testator  himself,  or  of  some  other  per- 
son living  at  the  date  of  the  will,  so  long  as  the  predominant  pur- 
pose of  the  will  seems  fairly  to  equalize  one's  bounty.' 

§  540.  The  Same  Subject. 

As  for  a  gift  to  be  shared  by  the  children  of  two  or  more  per- 
sons, whether  expressed  to  the  children  of  A  and  B,  etc.,  or  to  the 
children  of  A  and  the  children  of  B,  the  devise  or  bequest  means 
prima  fmcie  that  these  children  shall  take  per  capita  and  not  per 
stirpes.^  And  thus  is  it  also  with  a  devise  or  bequest  to  children 
and  grandchildren,  or  to  brothers  and  sisters  and  nephews  and 
nieces,  as  though  intended  to  be  equally  divided  among  them,  the 

5.  King  V.  Savage,  121  Mass.  303;  Mass.  39,  36  N.  E.  582.  Intent,  after 
Lyon  V.  Acker,  33  Conn.  223;  Risk's  all,  controls.  107  Iowa,  636;  30  R.  I. 
Appeal,    52   Penn.    St.    271 ;    16    R.    I.       408,  78  N.  W.  673,  39  A.  750. 

208,  14  A.  850.  7.   12  Bush.  369. 

6.  King  V.  Savage,  supra;  Harris's  8.  2  Jarm.  Wills,  194,  and  Bigelow's 
Estate,  74  Penn.  St.  452;  Lackland  v.  note;  2  Vern.  705;  Lincoln  v.  Pelham, 
Downing,  11  B.  Mon.  34;  Fisher  v.  10  Ves.  116:  Luzar  v.  Harman,  1  Cox, 
Skillman,  3  C.  E.  Green,  236 ;  Haw-  350 ;  Farmer  v.  Kimball,  46  N.  H.  435, 
kins  Wills,  115.  Cf.  9  Rich.  Eq.  471;  88  Am.  Dec.  219;  Hill  v.  Bowers,  130 
2  Div.  Eq.  306:  Walker  v.  Webster,  Mass.  135;  Thompson  v.  Young,  25 
95  Va.  377,  28  S.  E.  570;  Thomas  v.  Md.  461;  Post  v.  Herbert,  27  N.  J.  Eq. 
Miller,  161  111.  60,  43  N.  E.  848.  A  540;  Young's  Appeal,  83  Penn.  St.  59; 
division  "equally  between"  instead  Hoxton  v.  Griffith,  18  Ctratt.  574; 
of  "  equally  among "  imports  a  per  Hawkins  Wills,  113.  The  codicil 
stirpes  division.  162  Penn.  St.  369 ;  taken  with  the  will  may  evince  such 
29  A.  739.  Cf.  135  Ind.  278,  34  N.  E.  intention.  Atwood  v.  Geiger,  69  Ga. 
991;    63    Conn.    377,    28   A.    524;    161  498. 

685 


540 


•LAW    OF    WILLS. 


[PAET    VI. 


objects  of  bounty  being  specified  by  name.*  Indeed,  wherever  as 
a  class  the  beneficiaries  are  individually  named,  or  are  designated 
by  their  relationship  to  some  ancestor  living  at  the  date  of  a  will, 
whether  to  the  testator  or  some  one  else,  they  share  per  capita,  by 
natural  inference,  and  not  per  stirpes;  ^  and  especially  if  they  are 
all  of  tbe  same  degree.^  Persons,  moreover,  who  would  otherwise 
have  taken  per  stirpes,  as  A  and  the  children  of  B,  or  the  mem- 
bers of  a  specified  class  and  their  children,  may,  from  the  collective 
description  under  which  all  are  embraced  in  the  will,  be  presumed 
to  take  per  capita  and  equally.^ 

But  this  construction  bends  readily  as  in  other  cases  tc  indica- 
tions in  the  will  of  a  contrary  purpose,  or  to  intended  consonance 
with  the  statute  policy  of  lineal  representation,  if  such  be  the  fairer 
conclusion  from  the  whole  context.*  And  the  instances  where  the 
presumption  has  thus  given  way  are  very  many.  As  in  the  mode 
of  appropriating  income,  or  a  failing  share  before  the  capital  fund 
is  to  be  distributed.^     Or  bv  force  of  such  words  as  "  heirs,"  ®  or 


9,  Kean  v.  Roe,  2  Harring.  103;  2 
Jones  Eq.  202. 

1.  2  Jarm.  194,  Bigelow's  note; 
Crawford  v.  Redus,  54  Miss.  700; 
Young's  Appeal,  supra;  Post  v.  Jack- 
son, 70  Conn.  283,  39  A.  51;  Scott's 
Estate,  163  Penn.  St.  165,  29  A.  877. 

2.  Where  all  the  next  of  kin  are 
children  of  brothers  and  sisters,  they 
take  per  capita.  Wagner  v.  Sharp, 
33  N.  J.  Eq.  520. 

3.  Blackler  v.  Webb,  2  P.  Wms.  383 
Butler  V.  Stratton,  3  Bro.  C.  C.  367 
12  Sim.  167,  184;  Payne  v.  Webb,  L 
R.    19    Eq.   26;    1   Jarm.   Wills,    194 
Pitney  v.  Brown,  44  111.  363;  38  N.  J 
Eq.  348 ;  Bible's  Estate,  81*  Penn.  St 
279;    Hawkins   Wills,    113;    Scott   v 
Terry,  37  Miss.   64;    Fisher  v.  Skill 
man,  3  C.  E.  Green,  231;  118  111.  403, 
9  N.  E.  210;  Senger  v.  Senger,  81  Va. 
687;   72  Ga.  825;  64  N.  II.  328,  10  A. 
702. 


A  devise  to  "  all  my  grandchildren 
in  equal  shares  "  entitles  them  to  take 
per  capita  and  not  per  stirpes.  142 
Mass.  240,  7  N.  E.  771.  But  other 
expressions  indicate  an  apparent  in- 
tention to  the  contrary.  19  N.  C.  207; 
113  N.  Y.  366;  118  Ind.  23,  20  N.  E. 
519;  Lockwood's  Appeal,  55  Conn. 
157;  10  A.  517.  As  to  a  bequest  of 
equal  amounts  to  various  classes,  one 
of  which  comprises  a  single  family 
while  the  other  classes  comprise  mem- 
bers of  different  families,  see  67  Conn. 
8,  34  A.  758. 

4.  2  Jarm.  Wills,  195,  and  Bigelow's 
note;  Alder  v.  Beal,  11  Gill  &  J.  123; 
cases  infra;  Hawkins  Wills,  113.  It 
will  yield  "  to  a  very  faint  glimpse  " 
of  a  different  intention  in  the  context, 
says  Jarman.     lb. 

5.  Brett  v.  Horton,  4  Beav.  239; 
Hawkins  v.  Hanimerton,  16  Sim.  410; 
1  Mer.  358;    (1895)   2  Ch.  196. 


686 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    540 

"  respectively."  ^  Or  where  the  gift  to  children,  nephews,  etc.,  is 
merely  substitutional,  as  in  the  case  of  a  bequest  not  collectively 
to  A  and  B  ''  and  their  children,"  but  to  A  and  B  "  or  their  chil- 
dren." ^  Or  where  "  children  of  A"  as  a  class  are  named  with 
other  individual  beneficiaries.^  Or  where  a  child  has  died  since 
the  will  was  executed  leaving  lineal  issue.^  And  generally  where 
the  other  dispositions  in  the  will  lead  easily  to  a  contrary  inter- 
pretation.^ For  all  this  indicates  that  the  idea  of  bestowing  by 
representation  and  per  stirpes  and  not  equally,  of  making  a  gift  to 
respective  classes,  of  treating  children  as  standing  in  the  place  of 
their  parents,  was  in  the  testator's  mind  when  he  made  the  will.^ 
And  where  by  one  clause  of  the  will  a  distribution  of  property  per 
cdpita  is  directed,  and  by  a  subsequent  contradictory  clause  a  dis- 
tribution per  stirpes,  the  latter  may  be  held  to  control.*     Furlher- 


6.  Supra,  §  539. 

7.  Davis  V.  Bennett,  4  De  G.  F.  &  J. 
327.  But  not  if  equal  division  among 
them,  share  and  share  alike,  is  di- 
rected.    13  S.  C.  512. 

8.  2  Jarm.  Wills,  195,  196;  Davis  v. 
Bennett,  supra;  Price  v.  Lockley,  6 
Beav.   180. 

9.  Ferrer  v.  Pyne,  SI  N.  Y.  281;  83 
N.  Y.  505;  30  N.  J.  Eq.  595. 

1.  Edgerly  v.  Barker,  66  N.  H.  434, 
28  L.  R.  A.  328,  31  A.  900. 

2.  Adams  v.  Adams,  2  Jones  Eq. 
217;  136  Penn.  St.  222,  20  A.  421. 

3.  Hawkins  Wills,  114,  and  Sword's 
note;  6  Ired.  Eq.  487;  7  Rich.  Eq. 
133;  W^alker  v.  Griffin,  11  Wheat.  375, 
6  L.  Ed.  498. 

4.  Carter  v.  Lowell,  76  Me.  342; 
supra,  §  478.  And  see  Campbell's 
Trusts,  31  Ch.  D.  685;  aff.  33  Ch.  D. 
98. 

The  cases  which  apply  the  construc- 
tion per  capita  or  per  stirpes  are  very 
numerous,  and  need  not  be  cited  at 
length.   See  cases  already  cited  supra. 


And  see  {per  stirpes)  :  79  N.  E.  260, 
193  Mass.  284,  118  Am.  St.  Rep.  497; 
146  Cal.  12,  79  P.  314;  64  A.  1041,  104 
Md.  262;  64  N.  E.  267,  197  111.  144; 
Lee  V.  Baird,  132  N.  C.  755,  44  S.  E. 
605;  Gulley  v.  Lillard,  141  S.  W.  58, 
145  Ky.  746;  98  N.  E.  1051,  312  Mass. 
232;  Hazard  v.  Gushee,  87  A.  201,  35 
N.  J.  438.  {per  capita)  :  110  N.  W. 
599,  133  Iowa,  215;  56  S.  E.  473,  61 
W.  Va.  262,  12  L.  R.  A.  (N.  S.)  283; 
39  S.  E.  395,  113  Ga.  889;  150  S.  W. 
835,  150  Ky.  641;  152  111.  App.  620; 
Perry  v.  Brown,  83  A.  8,  34  R.  I.  203; 
Davis  v.  Edwards,    (1910)    2  Ch.   74. 

Presumptions  here  yield  readily  to 
the  apparent  testamentary  intent.  Yet 
as  a  rule  claimants  take  per  stirpes 
only  when  they  stand  in  unequal  de- 
grees of  relationship  to  the  testator, 
and  are  of  different  classes;  but  when 
they  are  of  equal  degrees  of  relation- 
ship and  of  the  same  class  they  take 
per  capita.  Van  Gallow  v.  Brandt, 
134  N.  W.  1018,  168  Mich.  642. 

Local    statutes   may    be   found   ex- 


687 


§  541  LAW  OF  WILLS.  [PART  VL 

more,  the  policy  of  our  local  statutes  of  distributions  will  be  found 
to  favor  the  right  of  representation  more  fully  as  to  lineal  than 
collateral  kindred.^  The  division  among  individuals  "  in  equal 
shares,"  or  the  like  expression  imports  a  per  capita  division  where 
statute  policy  or  special  consideration  suggests  no  different  con- 
struction ;  ^  and  the  will  may  indicate  that  the  testator  actually 
intended  to  supersede  statute  policy^ 


§  541.  The  Same  Subject. 

Occasion  has  sometimes  arisen  for  applying  this  distinction  of 
per  capita  and  per  stirpes  where  the  devise  or  bequest  is  to  tenants 
for  life  with  a  remainder  over.  Here  the  conclusion,  where  no 
plainer  signs  of  a  testator's  intent  appear,  must  depend  much  upon 
whether  the  tenants  for  life  take  with  or  without  a  right  of  sur- 
vivorship. If  the  gift  be  to  several  for  life  in  common,  and  after- 
wards to  the  children  of  some  only  of  these  life  tenants,  these  chil- 
dren may  readily  be  presumed  to  take  per  capital  But  otherwise 
a  gift  to  A  and  B  for  life  as  tenants  in  common  devolves  prima 
facie  on  the  children  per  stirpes,  so  as  to  keep  each  share  dependent 
upon  a  death,  separate  and  distinct.*  But  if  the  life  tenants  take 
as  joint  tenants,  or  in  any  other  manner  which  gives  the  right  of 
sur\nvorship,  and  but  one  period  of  distributing  the  fund,  it  may 
be  presumed  that  with  one  class  of  objects,  they  were  intended  to 
take  per  capita}  And  so,  too,  even  without  this  survivorship, 
where  the  general  distribution  among  children  is  postponed  until 

tending  the  favor   of  the   law  to  the  8.  Swan  v.  Ilohnos,  19  Beav.  471. 

rule  of  per  stirpes  or  representation  9.    2    Jarm.   Wills,    197,    and   cases 

of  an  ancestor's  share.     15  R.  I.  171,  cited;    Wills  v.   Wills,   L.   R.    20   Eq. 

2  A.  302;    46  Ohio  St.  307,  24  N.  E.  342;   Cowp.  777;   Arrow  v.  Mellish,  1 

599;  81  Me.  268,  17  A.  66;    84  Mich.  De  G.  &  S.  355;   Hawkins  Wills,  114, 

567,  48  N.  W.  183.  115;  161  111.  60;  Ballantine  v.  Foster, 

5.  See  Woodward  v.  James,  115  N.  30  S.  E.  481,  128  Ala.  638. 

Y.  346,  22  N.  E.  150.  1.  Malcolm  v.  Martin,  3  Bro.  C.  C. 

6.  See  117  N.  C.  122,  23  S.  E.  92.  50;   Taafc  v.  Conmee,   10  11.  L.   Gas. 

7.  Scott's  Estate,  163  Penn.  St.  165,  64;  Hawkins  Wills,  115;  18  Beav. 
29  A.  877.  590. 

688 


CIIAP.    II.]        DETAILS   OF   TESTAMENTARY    CONSTRUCTION.  §     542 

after  the  death  of  the  last  surviving  tenant  for  life.'  In  short,  a 
disposition  to  give  to  children  per  capita  appears  restrained  only 
by  the  inconvenience  of  identifying  them  together  as  distributees, 
v^hen  shares  go  over  separately  and  at  different  times  as  each  life 
tenant  dies,  and  there  might  be  more  children  to  take  one  share 
than  another  unless  the  per  stirpes  rule  were  applied.^  Nor  can 
even  this  inconvenience  override  a  testator's  manifest  intent.* 
Where  "  heirs  "  living  at  the  death  of  the  life  tenant  are  to  take, 
the  rule  p^r  stirpes  which  conforms  to  the  statute  of  descents  is 
preferable  to  apply.^ 

§  542.  "  Heirs  "  and  "  Next  of  Kin,"  as  used  in  Bequests. 

To  enter  more  fully  upon  descriptions  of  the  personal  interest 
taken  under  a  will,  let  us  first  consider  the  meaning  of  the  words 
''  heirs  "  and  "  next  of  kin  "  as  applicable  to  a  testator's  personal 
estate.  English  text-writers  distinguish  between  four  classes  of 
persons  who  may  take  personalty  beneficially  by  way  of  succes- 
sion: (1)  the  ''  next  of  kin  "  proper,  as  computed  according  to  the 
degrees  of  the  civil  law;  (2)  the  "next  of  kin  according  to  the 
Statute  of  Distributions,"  which  includes  those  who  take  by  repre- 
sentation to  next  of  kin;  (3)  the  wife,  who  is  entitled  to  a  share 
under  the  Statute  of  Distributions,  but  is  not  one  of  the  next  of 
kin;  (4)  the  husband,  who  was  said  to  take  the  personalty  of  his 
wife  by  virtue  of  his  matrimonial  right,  and  not  under  the  Statute 
of  Distributions  at  all.^  So  technical  a  division,  however,  between 
"  next  of  kin  "  within  and  without  the  Statute  of  Distributions, 
appears  unsuitable  to  the  temper  of  the  age  in  this  country  at  least. 
The  old  Statute  of  Distributions  of  Charles  IL,  though  at  the  basis 
of  our  American  jurisprudence,  by  no  means  fixes  the  prevailing 
rights  of  kindred  in  the  systems  of  the  several  States;  but  measur- 

2.  Nockolds  V.  Locke,  3  K.  &  J.  6.  5.  161  111.  60,  43  N.  E.  848;   §  539. 

3.  Cases  supra;  2  Jarm.  197,  198.  6.  Steph.  Com.   197,   209:    Hawking 

4.  Ca.  t.  Talb.  27;  Abrey  v.  New-  Wills,  94.  Cf.  Schoul.  Exrs.  §§  498- 
man,  16  Beav.  431;  Swabey  v.  Goldie,  502    (Vol.  II.). 

1  Ch.  D.  380;   Smith  v.  Streatfield,  1 
Mer.   359;   Hawkins  Wills,   115. 

44  689 


§    542  LAW    OF    WILLS.  [PAET    VI. 

ing  these  rights  constantly  by  local  statute,  we  have  come  to  use 
"  next  of  kin"  in  a  sense  relative  to  such  local  legislation  as  may 
apply,  with  little  regard  to  the  original  statute,  and  much  less  to 
meaning  which  the  civilians  attach  to  the  term.  And  as  for  the 
rights  of  widow  or  surviving  husband  in  a  decedent's  estate,  we 
consult  our  written  law,  whether  styled  a  Statute  of  Distributions, 
or  bearing  any  other  title.  All  this  is  important,  when  we  consider 
that  what  a  testator  probably  intended  by  his  choice  of  words  is 
the  main  point  at  issue. 

The  word  "  heirs  "  in  a  bequest  of  personal  property,  referring 
to  the  heirs  of  A,  means,  then,  prima  facie  the  persons  who  would 
be  entitled  to  that  property  had  A  died  intestate ;  and  this  whether 
A  is  the  testator  himself,  or  some  one  else  named  in  the  will,  and 
whether  the  gift  is  substitutional  (  as  in  the  bequest  to  ^'A  or  his 
heirs  ''''^)  or  original  (as  to  the  '^  heirs  of  A").^  In  other  words,  heirs 
are  not  "  next  of  kin  "  according  to  the  civil  computation,  but  the 
statutory  next  of  kin  or  distributees,  those  who  for  the  purpose  of 
succession  stand  in  a  position  analogous  to  that  occupied  by  heirs 
as  to  real  estate,  under  the  law  of  descent.^     This  presumption 

7.  Hawkins  Wills,  92;  Gittings  v.  397;  Ferguson  v.  Stewart,  14  Ohio, 
McDermott,  2  My.  &  K.  69;  2  Jarm.  140;  Nelson  v.  Blue,  63  N.  C.  660; 
Wills,  79;  Doody  v.  Higgins,  9  Hare,  Ward  v.  Saunders,  3  Sneed,  391;  2 
32;  Newton's  Trusts,  L.  R.  4  Eq.  173.  Duv.  296;   Evans  v.  Godbold,  6  Rich. 

Such   a   bequest   is   construed   as   a  Eq.   26;    Sweet  v.   Button,   109   Mass. 

gift    by   way   of    substitution    to   the  589,  12  Am.  Rep.  744;  146  Mass.  345, 

heirs,  in  the  event  of  A's  death  before  15  N.  E.  360;  Ruggles  v.  Randall,  70 

the  period  of  distribution.   lb.    A  gift  Conn.  44,  38  A.  885;   110  N.  W.  599, 

"  to  A,  and  if  he  dies  before  me,  to  133  Iowa,  215;  65  A.  761,  102  Me.  63; 

his  heirs,"  conforms  also  to  the  rule  of  107  N.  Y.  S.  951;  55  A.  92,  65  N.  J. 

the  text.     1  J.  &  W.  388.     The  word  Eq.   119;    100  N.  E.  1109,  214  Mass. 

"  forever  "  does  not  alter  the  construe-  172;   76  S.  E.  917,  114  Va.  372;    100 

tion.     Doody  v.  Higgins,  supra.  N.  E.  510,  257  111.  101;  154  S.  W.  772, 

8.  Hawkins  Wills,  92,  and  Sword's  248  Mo.  423  ("natural  heirs").  The 
note;  Jacobs  v.  Jacobs,  16  Beav.  557;  meaning  of  the  word  "heirs"  when 
Porter's  Trusts  Re,  4  K.  &  J.  188;  used  in  a  will  may  be  determined 
Houghton   V.    Kendall,    7    Allen,    76;  from  the  context. 

Wright  V.  Trustees,  1  Hoff.  Ch.  212;  9.    lb.;    Hascall   v.    Cox,    49    Mich. 

Ashton's   Estate,    134   Penn.   St.   390,      435,   13  N.  W.  807. 
19  A.  699;   136  Penn.  St.  153,  20  A. 

690 


CHAP.    II.]        DETAILS   OF   TESTAMENTARY   CONSTEUCTION.  §    542 

favors  testamentary  intent,  notwitkstanding  the  word  "  heirs  "  is 
technical  and  inappropriate  to  personal  estate. 

Hence  English  cases  have  included  a  widow  in  the  bequest,  out 
of  deference  to  the  original  Statute  of  Distributions  of  Charles 
II. ;  ^  though  not  a  surviving  husband.^  But  a  just  regard  for  our 
local  law  of  distributions  in  this  country  may  well  exclude  both 
husband  and  wife  from  taking  as  "  heir  " ;  and  the  local  law,  if 
not  clearly  waived  by  the  testator  himself,  ought  to  conclude  the 
point,  whether  favorably  or  unfavorably  to  a  surviving  spouse.  In 
American  acceptation,  the  husband  is  neither  heir  nor  next  of  kin 
to  his  wife,  generally  speaking;  nor  is  the  widow  heir  or  next  of 
kin  to  her  husband.^  And  at  all  events  where  personalty  is  given 
to  the  widow  for  life,  and  after  her  death  to  the  testator's  "  heirs," 
the  widow  cannot  be  treated  as  an  heir;*  nor  in  any  other  case 
where  the  context  shows  that  she  is  regarded  differently. 

The  word  *■'  heirs  "  is  flexible  on  the  whole,  and  may  denote 
"  next  of  kin  "  or  "  heirs  at  law,"  according  to  the  nature  of  the 
property  given,^  as  well  as  next  of  kin  in  one  sense  or  another. 
But  what  this  word  signifies  is  in  all  cases  a  question  of  intention ; 
and  if  other  expressions  in  the  will  and  the  whole  context  clearly 
indicate  what  the  testator  meant,  and  that  his  meaning  was  not 
according  to  the  usual  sense  of  "  heirs  "  as  above,  that  intention 
must  prevail.^    And  whether  in  accordance  with  the  presumption 

1.  Hawkins  Wills,  92;  2  K.  &  J.  4.  Henderson  v.  Henderson,  1  Jones 
738;  Porter's  Trusts  Re,  4  K.  &  J.  L.  221;  56  N.  E.  62,  183  111.  463; 
ISS.  Hanvy  v.  Moore,  79  S.  E.  772,  140  Ga. 

2.  Richardson  v.  Martin,  55  N.  H.  691. 

45.  Gibbons  v.  Fairlamb,  26  Penn.  St.  5.  Ingram  v.   Smith,   1  Head,  411; 

217,  holds  that  the  word  "heir"  or  Sweet  v.  Button,  109  Mass.  589;   146 

*'  representative  "  does  not  necessarily  Mass.  424,   12  Am.  Rep.   744.     As  to 

exclude  the  husband,  if  he  can  be  in-  "  heir  "  in  a  devise  of  real  estate,  see 

eluded  by  the  law  of  the  country.  §§  545-553,  post,  at  more  length. 

3.  See  106  Penn.  St.  176,  216,  51  6.  Den  v.  Zabriskie,  15  N.  J.  L.  404; 
Am.  Rep.  516,  519.  But  local  statute  3  Rich.  Eq.  156;  Love  v.  Buchanan, 
may  change  this  rule.  Lincoln  v.  Al-  40  Miss.  758;  Williamson  v.  William- 
drich,  149  Mass.  368,  21  N.  E.  671,  4  son,  18  B.  Mon.  329;   53  Md.  550. 

L.  R.  A.  215.     See  §  543, 

691 


§  543 


LAW    OF    WILLS. 


[part    VI. 


or  against  it,  we  often  find  "  heirs  "  construed  by  a  court  where 
the  sense  permits,  as  though  it  were  written  "  children."'^  For 
"  issue,"  "  children,"  "  heirs  "  are  constantly  interchanged  in  tes- 
taments. And  some  other  meaning  of  the  word  may  have  been 
adopted  by  the  person  whose  will  is  to  be  interpreted,  since  the 
intention  disclosed  in  the  will  prevails.* 

Although,  logically  speaking,  no  one  is  the  "  heir  "  of  a  living 
person,  yet  a  devise  or  bequest  thus  expressed  in  description  de- 
scribes with  sufficient  certainty  as  signifying  the  heirs  apparent, 
or  such  persons  as  would  be  one's  heirs  when  the  gift  took  effect.® 

§  543.  The  Same  Subject. 

As  for  the  expression,  "  next  of  kin,"  when  employed  in  a  be- 


7.  Bowers  v.  Porter,  4  Pick.  19S; 
Eby  V.  Eby,  5  Penn.  St.  461;  6  Ala. 
431;   2  Desau.  94;  25  S.  C.  289. 

8.  Collier  v.  Collier,  3  Ohio  St.  369 ; 
Hayne  v.  Irvine,  25  S.  C.  289;  John- 
son V.  Brasington,  156  N.  Y.  181,  50 
N.  E.  859;  117  Ind.  308,  20  N.  E.  230. 
"  Heirs-at-law  of  A"  does  not  embrace 
readily  a  eliild  whom  A  has  adopted 
under  the  statute  since.  Wyeth  v. 
Stone,  144  Mass.  441,  11  N.  E.  729; 
Lord  V.  Bourne,  63  Me.  368,  18  Am. 
Rep.  234;  Tilman  v.  Davis,  95  N.  Y. 
17,  47  Am.  Rep.  1;  Houghton  v. 
Hughes,  79  A.  909,  108  Me.  233 ;  Flint 
v.  Trust  Co.,  138  N.  W.  629,  151  Wis. 
231;   71  S.  E.  959,  89  S.  C.  198. 

A  gift  to  the  "  heirs  of  E,  deceased," 
will  include  the  children  of  E's  son, 
who  died  after  tlie  will  was  executed, 
but  before  the  testator.  41  N.  J.  Eq. 
414,  5  A.  650.  Where  a  conversion 
from  real  to  personal  estate  has  taken 
place,  agreeably  to  the  will,  the  tech- 
nical sense  of  "  heirs  "  yields.  Howell 
v.  Ackerman,  89  Ky.  22.  See  further 
Castleljcrry    v.    Stringer,    57    So.    849 


(S.  C.)  ;  Smisson  Re,  82  A.  614,  79  N. 
J.  Eq.  233;  Dunshee  v.  Dunshee,  96 
N.  E.  298,  251  111.  405;  Beardsley  v. 
Fairehild,  87  A.  737.  87  Conn.  349;  102 
N.  E.  823,  259  111.  471. 

9.  1  P.  Wms.  229;  1  Denio,  165; 
Barber  v.  Pittsburg,  etc.,  R.  166  U. 
S.  83,  108,  4  L.  Ed.  925. 

"  The  word  '  heirs '  when  used  to 
denote  succession  in  a  gift  of  person- 
ality is  always  a  misnomer,  because 
'  heirs '  is  a  word  of  limitation,  and 
there  can  be  no  limitation  in  strict- 
ness of  a  chattel  interest.  Its  popular 
meaning  comprehends  those  who  suc- 
ceed to  tlie  property  of  an  ancestor, 
and  hence  includes  next  of  kin  and 
those  who  take  under  the  statutes  of 
distribution  as  well  as  heirs-at-law. 
The  courts  are  forced  to  accept  this 
definition  where  a  gift  of  personalty 
is  to  one  and  his  heirs,  or  to  one  for 
life  and  then  to  his  heirs."  Ashman, 
J.,  in  180  Penn.  St.  82.  As  to  "  right 
lieirs  "  amounting  to  a  plain  descrip- 
tion of  the  persons,  see  ib.  83. 


692 


CHAP.    II.]       DETAILS   OF   TESTAMENTAKT   CONSTKUCTION.  §    543 

quest  of  personalty,  the  English  precedents,  after  much  conflict  of 
authority,  concluded  it  to  import  prima  facie  by  itself  a  gift  by 
way  of  joint  tenancy  to  the  nearest  blood  relations  of  the  propositus 
in  equal  degree  under  the  civil  computation;^  and  this  in  pursuance 
of  the  technical  distinction  already  pointed  out.^  For  to  carry  the 
gift  to  "  next  of  kin,  according  to  the  Statute  of  Distributions," 
one  ought  to  express  himself  to  that  effect,  or  at  least  imply  such 
a  purpose,  as  in  giving  to  those  who  would  have  taken  had  he  died 
intestate  f  in  which  ease  the  right  of  representation  and  per  stirpes 
will  take  effect,  and  legatees  take  as  tenants  in  oommon.'*  The 
above  rule  of  construction  would  put  the  father  of  a  testator  on 
the  same  footing  as  his  own  children,  where  he  gives  simply  to  his 
"  next  of  kin,"  and  among  children  ignore  utterly  the  right  of  rep- 
resentation.^ How  contrary  this  is  to  one's  natural  intent  we  need 
not  argue;  and  in  the  midst  of  these  refinements  of  construction. 


1.  Elmesley  v.  Young,  2  My.  &  K. 
780;  Withy  v.  Mangles,  4  Beav.  358; 
s.  c,  10  CI.  &  F.  215 ;  Hawkins  Wills, 
97;  2  Jarm.  Wills,  108-111.  Ameri- 
can precedents  may  be  found  of  the 
same  purport.  5  Jones  Eq.  236 ;  5 
Ired.  Eq.  382;  Redmond  v.  Burroughs, 
63  N.  C.  242;  Hoff.  Ch.  202;  Swasey 
V.  Jaques.  114  Mass.  135,  59  Am.  Rep. 
65,  10  N.  E.  758. 

■■*  It  is  certainly  difficult  to  distin- 
guish between  the  expressions  '  next 
of  kin,'  '  nearest  of  kin,'  '  nearest  kin- 
dred.' and  '  neare:^t  blood  relations,' 
and  primarily  the  words  indicate  the 
nearest  degree  of  consanguinity,  and 
they  are  perhaps  more  frequently  used 
in  this  sense  than  any  other."  Field, 
J.,  in  Swasey  v.  Jaques,  144  Mass.  135, 
138.  By  the  will  as  here  applied,  the 
brother,  not  unjustly,  took  to  the  ex- 
clusion of  nephews. 

2.  Supra,  §  542. 

3.  Hawkins    Wills,   97-99;    Garrick 


V.    Camden,    14    Ves.    372;     2    .Jarm. 
Wills,  109. 

4.  Bullock  V.  Downes,  9  H.  L.  Ca. 
1;  L.  R.  6  Eq.  601.  Some  nice  dis- 
tinctions necessarily  arise  under  this 
p]nglish  rule.  See  2  Jarm.  109.  Thus, 
a  gift  to  the  "  next  of  kin  "  of  a  mar- 
ried woman  "  as  if  she  had  died  un- 
married," is  treated  as  too  doubtful 
a  reference  to  the  statute.  Halton  v. 
Foster,  L.  R,  3  Ch.  505.  In  one  of  the 
later  cases  a  bequest  "  to  the  heirs  or 
next  of  kin  of  A  deceased  "  was  held 
to  be  a  gift  to  a  class,  and  not  altern- 
ative: namely,  to  the  next  of  kin  of 
A  according  to  the  statvite.  Thomp- 
son's Trust  Re,  9  Ch.  D.  607. 

Gifts  expressly  to  "  next  of  kin " 
on  the  mother's  side  or  on  the  father's 
side,  or  exclusive  of  some  person  or 
persons,  or  preferring  one  line  of  kin- 
dred to  anotlier,  are  sometimes  con- 
strued.    2  Jarm.  110. 

5.  See  Schoul.  Exrs.  §§  1498-1502 
(Vol.  II). 


693 


§  544  LAW  OF  WILLS.  [part  vl 

Lord  Campbell  admits  frankly  that  "  the  law  has  by  some  bad  luck 
got  into  a  strange  state."  ^  The  true  intent  of  the  will  should  pre- 
vail against  any  perversion  of  words  from  their  usual  meaning; 
and  American  authorities  will  often  best  further  this  intent  by  pre- 
suming "  next  of  kin  "  to  mean,  as  it  does  in  popular  usage,  those 
whom  public  policy  and  legislation  recognize  as  such,  and  not  com- 
puting them  by  the  antiquated  and  unjust  rule  of  the  canonists. 

At  all  events,  under  a  gift  to  one's  own  "  next  of  kin,"  whether 
simply  or  under  the  Statute,  the  widow  takes  nothing,  nor  of  course 
does  a  surviving  husband ;  for  married  persons  are  not  "  next  of 
kin  "  to  one  another^ 

§  544.  "  Representatives,"  "  Executors  and  Administrators/'  etc., 
as  used  in  Bequests. 
The  term  "  representative,"  sometimes  called  a  "  personal  rep- 
resentative," or  a  "  legal  personal  representative,"  has  an  equivo- 
cal meaning  when  associated  with  a  deceased  person's  estate.  Ex- 
ecutors or  administrators  are  most  naturally  designated  by  such 
words.  Hence  a  bequest  of  personal  estate  to  the  "  representa- 
tives," or  the  "  personal  "  or  "  legal  personal  representatives  "  of 
any  one,  whether  of  the  testator  or  some  one  else  designated,  is 
taken  to  intend  prima  facie  one's  executors  or  administrators.^  But 
the  weakness  of  such  a  presumption  consists  in  making  those  who, 
properly  speaking,  slionld  represent  some  decedent  for  legal  pur- 
poses, represent  him  beneficially  to  the  detriment  of  his  statutory 
next  of  kin ;  or,  again,  of  making  the  deceased  testator  or  intestate 
represented  a  legatee  in  effect.   And,  accordingly,  courts  have  often 

6.  Uithey  v.  Manglos,   10  CI.  &   F.  8.  Hawkins  Wills,  107;  Saberton  v. 
215,  per  Ix)rd  Campljcll.  Skeels,    1    R.    &    My.    587;    King    v. 

7.  Garrick  v.  Camden,  14  Vos.  372;  Cleaveland,  4  De  G.  &  J.  477;  2  Drew. 
Storer  v.  Wheatley,  1  Penn.  St.  506;  230:  Ware  Re,  45  Ch.  D.  269. 
Irvin's  Appeal,  106  Penn.  St.  176,  51  A  wife  who  makes  her  will  and  dies 
Am.  Rep.  516;  Piatt  v.  Mickle,  137  soon  after  her  husband,  may  thus  re- 
N.  Y.  106;  32  N.  E.  1070;  67  N.  Y.  turn  the  property  she  received  under 
387:  Tlouphton  v.  Huj^lies,  79  A.  909,  his  will  to  his  estate.  Ilalsey  v.  Pat- 
108  Me.  233  (widow  not  heir-at-law)  ;  erson,  37  N.  J.  Eq.  445. 

139  N.  Y.  S.  814.     See  §  542. 

G94 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    544 

avoided  that  construction  bv  considering  the  statutory  heirs  or 
next  of  kin  as  "  representatives  "  in  a  layman's  looser  sense,  and 
under  that  description  fulfilling  the  policy  of  the  law  by  making 
the  bequest  operate  as  though  the  giver  had  died  intestate  in  re- 
spect of  such  property.*  And  in  other  instances  they  have  pre- 
sumed that  the  gift,  whether  to  the  personal  representative,  or  to 
executors  and  administrators,  meant  that  the  legal  representative 
should  take  the  property  in  his  fiduciary  character  only,  and  not 
as  the  rightful  owner. ^  The  context  may,  by  associating  such  words 
as  "  next,"  ^  or  by  directing  how  the  trust  fund  shall  be  paid, 
shared  or  enjoyed,^  or  by  some  otlier  reference  which  brings  out  the 
purpose  more  plainly,  conclude  that  executors  or  administrators 
should  not  take  in  one  character  or  another. 

"  Executors  and  administrators,"  or  "  legal  representatives " 
are  terms  quite  naturally  used  as  mere  words  of  limitation.  For 
in  the  common  case  of  a  gift  to  "A  and  his  executors  or  adminis- 
trators," or  to  "A  and  his  legal  representatives,"  A  takes  the  abso- 
lute interest,  being  manifestly  the  only  object  of  the  testator's 
bounty.*  But  a  gift  may  be  made  to  A's  "  representatives  "  by 
way  of  substitution  for  A  in  case  of  his  death ;  ^  or  to  such  of  a 
class  as  may  be  living  at  a  certain  time,  and  "  the  executors  or  ad- 
ministrators of  such  of  them  as  shall  then  be  dead  " ;  ^  or  to  A's 

9.   Bridge   v.   Abbot,   3    Bro.    C.   C.  77   Conn.   176;    Marsh   v.   Marsh,   137 

224;  Cotton  v.  Cotton,  2  Beav.  69;   2  N.  W.  1122,  92  Neb.  189. 

Jarm.  Wills,  111,  and  Bigelow's  note;  1.  See  Wigram,  V.  C.  in  HoUoway 

Horner  Re,  37  Ch.  D.  695;  Davies  v.  v.  Clarkson,  2  Hare,  523. 

Davies,   55   Conn.   319;    43   N.   J.   Eq.  2.  Stockdale  v.  Nicholson,  L.   R.  4 

95;   Brokaw  v.  Hudson,  27  N.  J.  Eq.'  Eq.  359. 

135;  3  Edw.  Ch.  270;  Gibbons  v.  Fair-  3.  2  Jarm.  113;  3  Ves.  148;  19  Beav. 

lamb,  26  Penn.  St.  217;   Thompson  v.  448;    Hawkins    Wills,    108;    7    Hare, 

Young,  25  Md.  450;  12  Rich.  Eq.  260.  225;    Atherton   v.   Crother,    19    Beav. 

English   analogy   would  thus   include  448. 

a  widow  as  a  beneficial  "  representa-  4.  Appleton  v.  Rowley,  L.  R.  8  Eq. 

tive,"    though    not    a    surviving    hus-  139;  2  Jarm.  115. 

band.    4  De  G.  &  J.  477;  supra,  §  542.  5.  Price  v.  Strange,   6  Madd.   159; 

And  see  2  Dem.  (N.  Y.)  112;  53  Conn.  Taylor  v.  Beverley,  1  Coll.  108. 

261,    2    A.    325;    52    A.    803     (R.    I.  6.  Seymour's  Trusts,  John.  472. 
1902);   Miller  v.  Metcalf,  56  A.  743, 

695 


§    54:5  LAW    OF    WILLS.  [PART    VI. 

"  executors  or  administrators,"  or  "  representatives  "  simply,  with- 
out any  suggestion  of  A's  death. ^  In  all  such  cases,  the  idea  of  a 
beneficial  gift  to  next  of  kin  is  necessarily  excluded.  But  whether 
the  property  shall  vest  in  the  representative  for  his  own  benefit  is 
another  thing.  Such  a  construction  appears  once  to  have  prevailed 
in  England;  but  the  later  and  more  trustworthy  cases  condemned 
it  as  quite  the  reverse  of  what  testators  naturally  intend ;  and  an 
express  enactment  of  William  IV.  confirms  the  impolicy  of  min- 
gling the  legal  and  fiduciary  characters.^  Apart  from  legislation, 
it  is  true,  an  executor  or  administrator,  a  legal  representative,  may 
be  made  a  legatee  if  the  testator  so  directs  explicitly ;  ®  though  one 
seldom  would  be  selected  as  an  object  of  bounty  for  the  sake  of  the 
office  and  not  the  man  who  filled  it;  but  the  general  purport  of  such 
gifts  is  prima  facie  that  the  representative  constituted  by  the  court 
takes  the  gift  not  beneficially  but  as  part  of  the  estate  which  ho 
represents.^  And  once  more  a  gift  may  be  made  to  '^  my  executor 
A,"  which  is  really  to  A  personally,  the  word  "  executor  "  being 
simply  descriptive  of  him.^ 

§  545.  Heir  how  far  favored  when  Realty  is  undisposed  of. 

Wherever  real  estate  is  not  beneficially  disposed  of  under  the 
will,  whether  this  results  from  the  silence  of  that  instrument,  or 
from  its  failure  of  operation  because  of  the  predecease,  disclaimer* 
or  incapacity  of  the  devisee  named,  the  rule  is,  that  the  beneficial 

7.  Trethewy    v.    Helyar,    4    Ch.    D.      where  the  bequest  was  to  executors, 
53 ;   2  Jarm.   118.  etc.,    "  for   their   own   use    absolutely 

8.  2  Jarm.  Wills,  118,  119:  1  Anstr.      and   forever." 

128,  disapproved  in  Long  v.  Blackall,  1.  2  Jarm.  Wills,  120;  Holloway  v. 

.3   Ves.   483;    Act.    1   Wm.   IV.   c.   40.  Clarkson,  2  Hare,  523. 
Thougli  the  original  gift  were  imme-  2.  6  Dem.  Sur.  166;   116  Mo.  App. 

diate,    and    the    legatee    died    in    the  308,  90  S.  W.  1170.     See  also  Dwight 

testator's  lifetime,  or  was  dead  at  the  v.   Gibbs,    129   N.   Y.   S.   961    ("legal 

date    of    the    will,    the    presumption  representatives "    as    lineal    descend- 

should  be  against  a  beneficial  enjoy-  ants)  ;    Hartford   Trust    Co.   v.    Wol- 

ment  y)y  the  representative.     17  Beav.  cott,  81  A.   1057,  85  Conn.  134   (do)  ; 

471 ;  Trethewy  v.  Helyar,  4  Ch.  D.  53.  Christman  v.  Roeach,   92  N.  E.   1080,. 

9.  Sec  Wallis  v.  Taylor,  8  Sim.  241,  198  N.  Y.  538. 

696 


CHAP.    II.]        DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    545: 

interest  therein  devolves  upon,  the  heir  or  heirs  at  law;  in  other 
words,  it  goes  according  as  the  local  statute  may  have  cast  the  in- 
heritance in  case  of  intestacy.  And  since  the  statute  rules  for  per- 
sonalty and  realty,  for  next  of  kin  and  the  technical  heirs,  for  dis- 
tribution and  descent,  do  not  generally  coincide,  this  distinction 
by  the  species  of  property  should  be  borne  in  mind  whenever  it 
exists.^ 

Hence  is  derived  the  familiar  doctrine  of  a  resulting  trust  in 
favor  of  the  heir  upon  the  true  interpretation  of  a  devise.  And 
consistently  with  this  doctrine,  the  heir  at  law  takes  the  benefit 
not  only  of  a  general  and  total  but  of  a  particular  and  partial  fail- 
ure of  disposition  under  the  will ;  so  that  where  real  estate  is  de- 
vised simply  upon  trust  for  a  particular  purpose,  as  for  paying 
special  debts,  or  with  a  direction  that  A  shall  have  the  rents  and 
profits  for  life  or  some  other  specified  term,  whatever  beneficial  in- 
terest remains  unexhausted,  or  unapplied,  results  to  the  heir.  This 
resulting  trust  in  favor  of  the  inhei-itance  sweeps  in  whatever  bene- 
ficial interest  touching  real  estate  or  its  proceeds  the  devise,  from 
one  cause  or  another,  fails  to  carry  off  into  other  channels.''  And 
so  jealously  have  courts  of  chancery  upheld  the  rights  of  the  heir 
to  the  landed  surplus  undisposed  of,  even  to  the  last  remnant,  that 
the  order  to  blend  personal  and  real  estate  in  a  common  fund  and 
other  equivocal  directions  of  a  testator  can  hardly  change  this  in- 
terpretation of  a  will.^ 

Where  the  devise  bears  the  stamp  of  a  trust  and  plainly  was  not 
for  the  devisee's  own  benefit — as  the  scope  of  the  intention  mani- 
fested by  the  instrument  itself  must  ultimately  determine,  whether 
by  introducing  such  words  as  ''  upon  trust  "  or  without  any  express 

3.  1  Jarm.  Wills,  565,  and  Bigelow's  G83;  Ackroyd  v.  Smithson,  1  Bro. 
note;  Cro.  El.  243;  Starkey  v.  Brooks,      C.  C.  503;  Lewin  Trusts,  122. 

1  P.  Wms.  390;  Robinson  v.  Taylor,  2  The  rule  of  the  text  operates  where 

Bro.   C.   C.   589;    Lewin   Trusts,    124;  the   testator's    real    intention    cannot 

Wright  V.  Methodist  Church,  1  Hoff.  be  ascertained;   but  a  devise  will  be 

203 ;  Tilghman  Re,  5  Whart.  44 ;  King  reduced  to  a  certainty  and  upheld  if 

V.  Mitchell,  8  Pet.  326,   8  L.  Ed.  592.  possible.      Jackson    v.    Kip.    2    Paine, 

4.  Cases  supra;  1  Jarm.  Wills,  565.  366. 

5.  Collins  V.  Wakeman,  2  Ves.  Jr. 

G97 


§    547  LAW    OF    WILLS.  [PART    VI. 

words  of  trust  whatever — this  resulting  trust  in  favor  of  the  heir 
arises.^  Negative  evidence  of  intent  cannot  exclude  him,  for  the 
trust  results  not  because  the  testator  so  willed  it,  but  because  he 
declared  no  positive  trust  to  the  contrary  which  can  operate  to  diS' 
pose  of  the  whole  fund.^  But  where  the  purpose  obviously  shown 
by  the  will  was  to  give  the  interest  in  the  land  beyond  the  scope  of 
the  declared  or  undeclared  trust  to  the  devisee  beneficially  instead 
of  the  heir,  the  latter's  rights  must  yield  accordingly.^ 

§  546.  The  Same  Subject. 

Thus  far  we  assume  that  the  testator  has  made  no  express  residu- 
ary devise  of  real  estate  by  his  will.  As  between  a  residuary  de- 
visee under  the  will,  however,  and  the  heir  at  law,  it  may  be  neces- 
sary to  determine  which  of  the  two  shall  take  the  realty  undisposed 
of  in  preference  to  the  other.  Here  the  modem  rule,  as  we  have 
seen,  which  tends  to  assimilate  dispositions  of  real  and  of  personal 
property  in  principle,  favors  the  residuary  devisee,  if  there  be  one, 
above  the  heir,  and  carries  to  him  prima  facie  all  real  estate  or  in- 
terest in  real  estate  comprised  in  any  void  or  lapsed  devise.'  And 
yet,  whether,  a  specific  devise  failing,  the  land  passes  by  the  resid- 
uary clause  or  goes  to  the  heir,  is  after  all  a  question  of  intent  under 
the  particular  will.^ 

§  547.  Meaning  of  "  Heirs  "  as  applied  to  Real  Estate ;  or  where 
Real  and  Personal  are  blended. 
The  word  "  heir  "  in  a  will  has  still  a  technical  meaning,  namely, 

6.  1  Jarm.  Wills,  566-583,  Bigelow's  8.  Lewin  Trusts,  118-120;    1  Jarm. 
notes,  and  cases  cited ;  Lewin  Trusts,      566. 

118-120;    Dawson   v.   Clarke,   18   Ves.  9.  Supra,  §  521;   Act  1  Vict.  c.  26, 

254;  Gloucester  v.  Wood,  1  H.  L.  Cas.  §    25;    Green   v.   Dunn,    20    Beav.    6; 

272;    Easterbrooks    v.    Tillinghast,    5  Tongue    v.     Nutwell,     13     Md.     415; 

Gray,  17.  Thayer  v.  Wellington,  9  Allen,  283  .  85 

7.  2  Vern.  425;  3  Ves.  211.    A  legacy  Am.   Dec.    753;    2   Jarm.    Wills.    646- 
to  the  heir  is  a  circumstance  wliich  651. 

may  be  considered  in  this  connection,  1.   Bosley  v.  Bosley,   14  How.   390, 

but  it  is  not  enough  to  prevent  liim      14  L.  Ed.  468. 
from  taking  a  trust  fund.     3  P.  Wma. 
193. 

698 


CHAP.    II.]        DETAILS   OF   TESTAMENTAKY   CONSTRUCTION.  §    547 

tLe  heir  at  law  of  real  estate ;  ^  and  if  there  is  nothing  in  the  con- 
text to  justify  a  different  construction,  the  heir  at  law  must  take 
the  property  as  persona  designata;  or,  in  the  broader  sense  of  to- 
day, heirs  are  those  persons  upon  whom,  under  the  policy  of  the  ju- 
risdiction where  the  land  lies,  the  inheritance  is  cast  in  case  the 
owner  died  intestate.  This  presumption  avails  in  strictness  only 
where  real  estate  is  devised ;  for  we  have  already  seen  that  "  heirs  " 
in  a  popular  sense  prima  facie  denotes  next  of  kin  under  the  statute 
of  distributions,  so  far  as  a  gift  of  personalty  is  concerned.^ 

If,  therefore,  property  real  and  personal  be  blended  under  a  gift 
expressed  to  ''  heirs,"  our  modem  construction  fitly  regards  the 
testator's  probable  purpose  as  to  each  element  of  the  disposition. 
There  are  cases  in  which  both  elements  are  mingled  so  completely 
in  one  fund  on  the  face  of  the  instrument  that  only  one  sense  of 
^'  heirs  "  seems  to  fit  the  case,  and  that  one  the  technical  or  real 
estate  sense;  *  or  possibly  as  synonymous  with  "  heir  apparent  "  or 
with  some  peculiar  or  inaccurate  meaning  attached.^  But  where 
real  and  personal  estate  are  given  together  and  not  so  inseparably 
blended,  "  heir  "  is  better  treated  as  an  elastic  term ;  and  in  such 
cases  the  intention  intimated  is  rather,  that  "  heirs  "  was  used  in  a 
twofold  meaning,  namely,  heir  at  law  as  regarded  the  real  estate, 
and  next  of  kin  as  concerning  the  personalty.^  For  where  the  word 
^'  heir  "  is  used  to  denote  succession  or  substitution,  it  may  in  our 
day  be  well  understood  to  mean  such  person  or  persons  as  would 

2.  2   Jarm.   Wills,   61;    Moimsey  v.  5.  Carne  v.  Roche,  7  Bing.  226:    2 
Blamire,  4  Russ.  484;   Co.  Lit.  10  a.      Jarm.  Wills,  71. 

Under   the   English   statute   3   &   4  6.  Wingfield  v.  Wingfield,  9  Ch.  D. 

Will  IV.  c.   109,   §   3,  the  heir  takes  658;  Keay  v.  Boulton,  25  Ch.  D.  212 

the  realty  in  the  character  of  devisee,  and  cases  cited;    De   Beauvoir  v.   De 

and   not   as   formerly   by   descent.      2  Beauvoir,   3   H.   L.  C.   524;    Sweet  v. 

Jarm.  61.     In  the  United  States  each  Button,  109  Mass.  589,  12  Am.  Rep. 

State   defines   the   inheritance   by   its  744;    152   Mass.   *57,   25   N.    E.    858. 

own  statute.  "  Heir    at    law "    may    thus    be    con- 

3.  Supra,  §  542.  strued  as  meaning  "  next  of  kin,"  as 

4.  See  Smith  v.  Butclier,  10  Ch.  D.  regards    the    personalty.      Swenson's 
113,  as  cited  in  25  Ch.  D.  214.  Estate,  55  Minn.  300,  56  N.  W.  1115. 

699 


§    548  LAW    OF    WILLS.  [PAET    VI. 

legally  succeed  under  statute  to  tlie  property  according  to  its  na- 
ture or  quality."^  In  all  cases,  however,  the  testator's  intention,  if 
manifest,  must  govern.  And  where  the  gift  is  directly  to  the  heirs 
of  a  person  as  a  substantive  gift  to  them  of  something  from  which 
their  ancestor  was  altogether  excluded,  this  element  of  succession 
or  substitution  is  wanting,  and  the  word  "  heirs  "  may  more  prop- 
erly receive  its  strict  common-law  meaning.^ 

§  548.  The  Same  Subject. 

Where,  then,  a  testator  devises  real  estate  to  his  heir  simply,  or 
to  his  heir  at  law  or  his  right  heirs,  the  person  or  persons  who  may 
answer  this  description  at  the  testator's  death  are  presumably  en- 
titled ;  nor  matters  it  that  the  devise  expressed  ''  heir  "  in  the  sin- 
gular,  while  statute  heirs,  in  the  given  instance,  are  plural ;  for 
"  heir  "  is  a  collective  term  and  may  stand  for  any  number  of  per- 
sons who  happen  to  fulfil  the  description.^  Furthermore,  it  is  a 
common-law  rule  of  ancient  standing  that  a  devise  simply  ex- 
pressed to  heirs  in  the  plural  vests  an  estate  in  fee  simple  without 
any  words  of  limitation  added. ^ 

What  we  have  said  of  a  devise  expressed  to  a  testator's  own  heir 
applies  equally  where  land  is  devised  to  the  heir  of  some  other 
person  designated  in  the  will.  But  no  one  is  the  heir  of  a  living 
person ;  ^  and  hence  a  gift  expressed  to  the  "  heirs  "  of  one  who 
proves  still  alive  could  not  in  strictness  vest,  especially  since  evi- 
dence dehors  the  will,  to  show  that  the  testator  thereby  intended 
''  heirs  "  in  some  special  sense,  would  be  inadmissible.     Courts, 

7.  Mounsey  v.  Blamire,  4  Russ.  384,  8.  Fabens  v.  Fabens,  141  Mass.  395, 

per  Sir  John  Leach,  M.  R.     And  see  5  N.  E.  650;   192  Mass.  367,  116  Am. 

what  Lord  Chancellor  Cottenham  says  St.  Rep.  246,  10  L.  R.  A.  (N.  S.)  1143, 

in  Withy  v.  Mangles,  10  CI.  &  F.  215,  78  N.  E.  422, 

253,    of    "  heirship    according    to    the  9.  Mounsey  v.  Blamire,  4  Russ.  384. 

nature  of  the  property."     See  also  2  1.  Skinn.  206;  2  Jarm.  Wills,  61,  62. 

Jarm.  Wills,  81,  82.  2.  "  Nemo  eat  haeres  viventis  "  is  the 

That     "  heir-at-law "     is     not     an  familiar  maxim.     2  Jarm.  Wills,  71. 
adopted   child,    see   Wyeth    v.    Stone, 
1444  Mass.  441;  supra,  §  542. 

700 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    549 

Lowever,  lay  hold  of  descriptive  words,  or  other  indications  in  the 
will  that  the  testator  regarded  the  person  as  living  and  meant  the 
gift  in  a  secondary  sense  to  the  children  or  some  other  relatives  of 
that  person  as  a  class  reckoned  at  the  testator's  death,  and  by  this 
interpretation  of  intent  save  the  gift.' 

The  presumptive  and  proper  meaning  of  "  heir "  yields,  of 
course,  to  the  context  and  probable  meaning  of  any  will  in  contro- 
versy taken  as  a  whole.  Thus,  a  testator  may  have  intended  the 
person  described  to  become  entitled  under  the  gift  in  his  ancestor's 
lifetime;  as,  for  example,  where  lands  are  devised  to  heirs  male 
"  now  living."  ^  Again,  he  may  have  used  ^'  heir  at  law  "  in  the 
sense  of  ^'  eldest  son,"  ^  or  "  heir  "  as  synonymous  with  "  heir  ap- 
parent," ^  or  with  express  reference  to  "  children."  ^  If  the  will 
plainly  devises  to  A  B,  identifying  the  person,  no  inaccurate  de- 
scription of  A  B  as  my  "  heir,"  or  by  similar  words,  will  defeat 
the  gift ;  for  it  may  be  said  either  that  "  heir  "  was  used  in  a  special 
sense,  or  that  the  words  of  misdescription  should  be  stricken  out 
as  surplusage,  leaving  the  devise  to  stand  unimpaired.^ 

§  549.  Devise  of  Lands,  Estate,  etc.,  in  Fee. 

We  have  shown  that  by  the  old  law  a  devise  of  lands  in  fee  with- 
out words  of  limitation  passed  prima  facie  an  estate  for  life  only, 
though  in  many  instances  subversive  no  doubt  of  the  testator's  real 

3.   2  Jarm.  Wills,  61,  Bigelow's  note;  47  N.  E.  778.    And  see  Hartford  Trust 

Heard   v.   Horton,    1    Denio,    168;    43  Co.  v.  Purdee,  79  A.  581,  84  Conn.  256. 

Am.  Dec.  659 ;  Carne  v.  Eoche,  7  Bing.  4.  James  v.  Richardson,  Ld.  Raym. 

226;  2  W.  Bl.  1010;   1  Dev.  &  B.  Eq.  330;   2  Jarm.  72;  Morton  v.  Barrett, 

393.  22  Me.  557. 

The  gift  is  not  saved  by  thus  infer-  5.  Carne  v.  Roclie,  7  Bing.  226. 

ring  the  secondary  meaning  of  "  heir,"  6.    2    Jarm.    Wills,    72,    73 ;    Good- 

if  limited  by  the  will  so  as  to  give  in  right  v.  White,  2  W.  Bl.  1010.     And 

effect    a    different    estate    from    what  see  2  Jarm.  74,  75. 

"  heir  "  in  the  primary  sense  denotes.  7.   Haverstick's   Appeal,   103   Penn. 

Campbell   v.   Rawdon,    18   N.   Y.   412.  St.   394;    Hinton    v.   Milburn,   23    W. 

See   comment   in   2   Jarm.    Wills,    61,  Va.  166;   Barton  v.  Tuttle,  62  N.  H. 

Bigelow's  note.     As  to  "  legal  heirs,"  558. 

see  Healy  v.  Healy,  70  Conn.  4«7,  39  8.    Supra,    §    516;    Hob.    33,    34;    1 

A.  793;  Heard  v.  Reed,  169  Mass.  216,  Vent.  381;  2  Jarm.  Wills,  75-77. 

701 


^    549  LAW    OF    WILLS.  [PART    VI. 

intention.^  "We  have  also  seen  that  modem  legislation  has  reversed 
the  rule  from  a  settled  conviction  of  its  inpolicy.^  It  was  always 
admitted  that  a  single  gift  to  A  carried  personal  property ;  and  a 
testator  naturally  supposed  that  if  he  gave  his  land  simply,  the 
same  result  would  follow;  and  hence  the  practical  mischief  wrought 
by  that  artificial  interpretation  of  earlier  times,  which  the  courts 
tolerated  as  long  as  they  did  from  the  dread  of  unsettling  old  titles 
in  real  estate,  though  avoiding  it  when  they  could  find  some  plausi- 
ble ground,  equally  artificial,  to  rest  upon.  With  the  English 
Statute  of  Victoria,  and  enactments  of  similar  scope  in  almost 
every  American  State,  we  may  now  consider  it  a  well-settled  prin- 
ciple that  in  a  devise  of  lands  neither  "  heirs  "  nor  any  other  word 
or  words  of  inheritance  or  limitation  need  be  superadded  in  order 
to  pass  a  fee ;  but  the  simple  devise  to  A  shall  be  construed  to  mean 
a  devise  in  fee  (or,  at  least,  all  the  testator's  interest  in  the  prop- 
erty), unless  the  will  clearly  imports  a  different  intention.^  And 
as  for  a  devise  of  *'  estate,"  this  word  passed  a  fee  even  under  the 
old  rule.^ 

In  order  to  meet  the  older  requirements  of  our  law,  and  for  the 
sake  at  all  times  of  leaving  one's  intention  clear  of  doubt,  a  devise 
in  fee  simple  has  most  properly  been  drawn  up,  so  as  to  give  the 
land  to  ''A  and  his  heirs,"  or  to  "A,  his  heirs,  and  assigns  for- 
ever ;  "  *  but  numerous  other  expressions  are  sustained  by  the 
courts :  as,  for  example,  "  to  A  forever,"  "  to  A  and  his  assigns 
forever,"  "  to  A  and  his  successors,"  "  to  A  in  fee  simple,"  "  to  A 
and  his  house,"  "  to  A  and  his  family,"  "  to  A  or  his  heirs."  ^    So 

9.  Supra,  §  483.  are  good  expressions  at  this  day  for 

1.  Supra,  §  485.  See  also  4  Kent,  giving  an  absolute  interest  to  the 
Com.  5-8 ;  lb.  535,  538 ;  2  Jarm.  Wills,      devisee. 

267,  268.     See  153  S.  W.  420,  152  Ky.  3.  Supra,  §  484;  2  Jarm.  276.     The 

317;    Houghton    v.    Brantingham,    80  words    "shall    have    and    hold"   may 

A.  664,  86  Conn.  630.  carry  a  fee  under  a  will,  though  they 

2.  4.  Kent.  Com.  7,  8,  535  and  num-  do  not  under  a  deed.     144  Penn.  St. 
erous  cases  cited;  2  Jarm.  Wills,  268,  286,  13  L.  R.  A.  359,  22  A.  897. 
Bigelow's  note.     "  I  give  my  lands,"  4.  2  Jarm.  V/ills,  274. 

"all  the  rest,  residue  and  remainder  5.  lb.  and  cases  cited;  Co.  Lit.  9  b; 

of  my  lands,"  "all  my   lands,"  etc.,      8  Vin.  Ab.  206;  Read  v.  Snell,  2  Atk. 

702 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   COXSTKUCTION.  §    549 

has  the  inheritance  in  fee  passed  where  incidents  of  jus  disponendi 
were  annexed  to  the  gift ;  as,  to  A  "  to  give  and  sell,"  "  to  be  at 
his  discretion,"  "  to  give  away  at  his  death  to  whom  he  pleases," 
"  to  do  what  he  will  with  it,"  and  the  like.''  A  devise  witli  "  all 
right  and  title  "  or  "  all  interest  "  annexed  imports  a  feeJ  It  is 
not  upon  formal  modes  of  expression,  however,  that  the  force  of  the 
devise  turns;  for  whenever,  expressly  or  by  implication,  the  will 
shows  the  purpose  to  give  one's  real  property  in  fee  simple,  that 
purpose  shall  prevail,^  and  so  conversely  w^here  a  lesser  estate  was 
intended.^ 

When  real  estate  is  given  absolutely  to  one  person  with  a  gift 
over  to  another  of  such  portion  as  may  remain  undisposed  of  by 
the  first  taker  at  his  death,  the  gift  over  is  void  as  repugnant  to  the 
absolute  property  first  given ;  and  it  is  also  established  law  that 
where  an  estate  is  given  to  a  person  generally  or  indefinitely  with 
a  power  of  disposition,  or  to  him,  his  heirs  and  assigns  forever,  it 
carries  a  fee,  and  any  limitation  over  or  qualifying  expression  of 
less  import  is  void  for  repugnancy.  The  only  exception  to  such  a 
rule  is  where  the  testator  gives  to  the  first  taker  an  estate  for  life 
only,  by  certain  and  express  terms,  and  annexes  to  it  the  power  of 
disposition.  In  that  particular  and  special  case  the  devisee  for  life 
will  not  take  an  estate  in  fee,  notwithstanding  the  naked  gift  of  a 
power  of  disposition.-^ 

645;   Wright  v.  Atkyns,  17  Ves.  261.  7.  5  T.  R.  292;   Sharp  v.   Sharp,  6 

A  devise   simply   to   "  A.  and  his   as-  Bing.  230. 

signs  "  imports  a  life  estate  only.    Co.  8.  2  Jarm.  275;   4  Kent  Com.  435, 

Lit.  9  b.    See  the  expression,  "  in  fee-  436.     That  a  devise  of  rents,  profits, 

simple    for    life,"    construed    in    Mc-  etc.,   will   carry   the   inheritance,    see 

Allister  v.  Gale,  11  Rich.  509.     A  de-  supra,  §  503. 

vise  "  to  A.  absolutely,"  will  pass  the  9.  As  to  whether  a  devise  to  a  per- 

fee.      Oswald   v.   Kopp,    26   Penn.   St.  son   "  to  be  freely  possessed  and   en- 

513.  joyed  "  passes  more  than  a  life  estate, 

6.    2   Jarm.    Wills,   274,    275;    Jen-  cf.  Drewry  v.  Barron,  11  East,  220; 

nings    V.    Conboy,    73    N.    Y,    230;    8  Lloyd  v.  Jackson,  L.  R.  1  Q.  B.  571; 

Conn.  277,  20  Am.  Dec.  110;   1  Harr.  Wright  v.  Denn,  10  Wheat.  204,  6  L. 

25;    Purcell   v.   Wilson,   4  Gratt.   16;  Ed.  303.    And  see  Bedford  v.  Bedford, 

17  Pick.  436,  28  Am.  Dec.  311.  99  Ky.  273;   35  S.  W.  926. 

1.  Mulvane  v.  Rude,  146  Ind.  482, 
703 


§  550  I.AW  OF  WILLS.  [part  vi. 

§  550.  Words  "Estate,"  "Property/'  "Residue,"   "Remainder." 

Since  "  estate  "  may  denote  the  quantum  of  interest  as  well  as 
the  corpus  of  the  property,  the  word  has  been  given  a  free  scope 
in  passing  the  inheritance  wherever  its  interpretation  in  a  will 
may  consist  with  such  an  intent.  As  where  testator  devises  "  all 
my  estate,"  all  the  remainder  (or  the  residue,  or  the  rest)  "  of  my 
estate,  real  and  personal,"  "  all  my  estate,  real,  personal,  and 
mixed,"  or  even  "  my  estate,"  or  "  my  estates  "  at  or  in  a  certain 
place;  ^  though  not  if  "  estate  "  is  used  as  descriptive  of  chattel  in- 
terests, so  as  to  exclude  a  freehold.^  That  the  "  estate  "  described 
locality  or  the  corpus  of  the  property,  does  not  hinder  this  liberal 
presumption,  that  a  fee  by  way  of  interest  was  also  intended  ;■*  but 
the  word  should  appear  in  the  very  terms  of  gift,  and  be  what  is 
called  an  operative  word,  and  not  occur  by  way  of  mere  description 
or  with  some  disconnected  sense  in  a  different  part  of  the  will.^ 
The  operation  of  the  word  "  estate  "  may  doubtless  be  restrained 
by  the  context,  and  any  presumption  that  a  fee  was  given  is  over- 
come when  the  whole  will  discloses  an  opposite  pui-pose.^ 

"  Property  "  is  a  word  which  may,  like  "  estate,"  operate  to  pass 
the  whole  inheritance:  thus.  ''  a  gift  of  all  my  property  both  real 
and  personal,"  will  presumably  carry  a  fee  in  the  land.^     Under 

483,    45    N.    E.    659,    and    numerous  4.  Supra,  §   484;    2  Jarin.  277. 

cases   cited ;    144    111.    554,    33   N.    E.  5.    "  The    principle    is,    that    where 

751;  Kendall  v.  Clapp,  163  Mass.  69,  the    word    'estate'    is    an    operative 

39  N,  E.  773;    §§   559,  .560;   McClure  word,   it   passes   the   fee,   and   to   try 

Re,  136  N.  Y.  238,  32  N.  E.  758;  Law  whether    it   be   operative   or    not   the 

V.  Douglass,  107  Iowa  606,  78  N.  W.  test  is  to  strike  it  out  of  the  will." 

212;   177  m.  606,  52  N.  E.  843.     See  Heath,    J.,    in    Randall    v.    Tuchin,    6 

§   559-60.  Taunt.    410.      Yet    "  said    estate "    as 

2.  Supra,  §  484;  2  Jarm.  Wills,  referring  to  what  precedes  is  treated 
276,  and  Bigelow's  note;  Hawkins  as  operative.  See  2  Jarm.  280,  281; 
Wills,   131;    Jackson   v.   Delancey,   13  6  Taunt.  317. 

Johns.   537,  7  Am.  Dec.  403;   Archer  6.  2  Jarm.  282. 

V.  Deneal,  9  Pet.  585;   9  L.  Ed.  238;  7.    2    Jarm.   Wills,    283.   and    Bige- 

25  Penn.  St.  142;   107  Mass.  590.  low's   note;    Nicholls   v.    Butcher,    18 

3.  See  Shaw,  C.  J.,  in  Godfrey  v.  Ves.  193;  Lelaiid  v.  Adams.  9  Gray, 
Humphrey,  18  Pick.  539,  29  Am.  Dec.  171;  Coltamann  v.  Coltsmann,  L.  R. 
621.  3  H.  L.  121;  Rossetter  v.  Simmons,  6 

704 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTKUCTION.  §    551 

the  words  "  remainder  "  or  "  reversion  "  a  remainder  in  fee  or  a 
reversion  in  fee  was  carried  under  the  old  rule ;  ^  but  the  words 
"  residue "  and  "  remainder,"  as  commonly  used  in  residuary 
clauses,  did  not  operate  with  similar  force  according  to  English 
precedent,*  though  in  this  country,  as  well  as  under  the  modem 
rule,  a  fee  of  the  residue  should  generally  be  presumed.^ 

§  551.  Customary  Heir;  Heirs  Male  of  the  Body,  etc. 

The  common-law  heir,  or  heir  general,  was,  for  centuries  from 
the  Norman  Conquest,  favored  above  the  customary  heir,  so  that 
if  gavelkind  lands,  which  by  the  old  Saxon  tenure  admitted  sons 
equally  to  the  inheritance,  were  devised  to  the  heirs  of  any  person 
without  an  estate  in  the  ancestor,  the  eldest  son  alone  took  the  fee 
simple.^ 

Lord  Coke  laid  down  another  rule  still  more  exclusively  in  favor 
favor  of  the  heir  general  or  heir-at-law,  where  one  devised  to  "heirs 
male  of  the  body  "  of  a  person;  ^  which  rule,  however,  is  now  re- 
pudiated, so  that  (as  regards  estates  tail,  at  least)  a  devise  thus 
expressed  does  not  require  the  heir  male  of  the  body  taking  by  pur- 

S.  &  R.  452.     And  see  supra,  §  484,  emanated    from    the    legislature."      2 

as    to    the    effect    of    other    words    in  Jarm.    Wills,    287. 

sanctioning  a  fee;  also  2  Jarra.  Wills,  Where  one  holding  a  fee  simple  in 

285.  an    undivided    half   of   certain    prem- 

8.  2  Ves.  48;  1  Ld.  Raym.  187;  2  ises  devises  to  A  "  my  undivided  half  " 
Jarm.  284.  of  such  premises,  this  gives  A  a  fee 

9.  2  Jarm.  285;  Denn  v.  Mellor,  57  simple,  although  no  vrords  of  inlier- 
R.   558.  itance  are  used.     Waterman  v.  Green, 

1.  Parker  v.  Parker,  5  Met.  134.  12  R.  I.  483.  A  testator  may  give 
Tlie  abolition  of  the  technical  rule  one  third  or  some  other  proportion  of 
which  favored  the  heir  at  the  cost  of  all  his  property  so  as  to  vest  that  un- 
the  devisee  wherever  a  devise  was  divided  interest  absolutely  in  his  de- 
made  without  words  of  limitation  is  visee.  Roseboom  v.  Roseboom,  SI  N. 
generally    commended.       "  Upon    the  Y.  356. 

whole,"    observes   Mr.    Jarman,    "the  2.  Bouv.    D'ct.    "Gavelkind";     Co. 

enlargement   of   the   operation   of   an  Lit.  10  a;  Roberts  v.  Dixwell,  1  Atk. 

indefinite  devise  may  be  regarded  as  607;   2  Sm.  &  G.  90;   2  Jarm.  Wills, 

one  of  the  most  salutary  of  the  new  78. 

■canons  of  interpretation  which   have  3.  Co.  Lit.  246. 

45  705 


§    552  LAW    OF    WILLS.  [PAET    VI. 

chase  to  be  heir  general.^  This  later  construction  conforms  to  the 
general  presumption  that  "  heirs  male  of  the  body  "  or  "  issue 
male"  properly  means  de-=cendants  in  the  male  line  only;  that  is, 
males  claiming  through  males.^  And  while  the  expression  "  heirs 
male  "  forever  (instead  of  ^'  heirs  "  forever)  in  a  deed  would  be 
superfluous  and  inaccurate,  it  is  a  rule  with  respect  to  a  devise 
that  this  shall  be  construed  to  mean  "  heirs  male  of  the  body."  It 
follows  that  a  devise  to  A  and  his  heirs  male  forever  vests  in  A  an 
estate  in  tail  male ;  ®  or,  if  a  will  gives  land  to  the  testator's  "  son, 
A,  and  his  oldest  male  heir  forever,"  A  takes  an  estate  tail ; '  and 
in  a  devise  to  A  for  life,  with  remainder  to  his  "  heirs  by  "  a  par- 
ticular wife,  "  heirs  by  "  is  equivalent  to  ''  heirs  of  the  body  by  " 
that  wife.^ 

In  short,  an  estate  tail  may  frequently  be  created  under  a  devise 
by  words  less  precise  and  formal  than  in  a  conveyance ;  ^  and  upon 
the  theory  that  the  testator  intended  some  qualification  upon  the 
inheritance,  that  intention  operates  accordingly. 

§  552.  The  Same  Subject. 

The  rule  of  Archer's  Case  deserves  notice  in  this  connection. 
This  inile  is,  in  substance,  that  where  an  estate  is  limited  by  devise 
to  A  for  life,  with  remainder  to  the  heir  male  of  his  body  (in  the 
singular  number),  and  to  the  heirs  male  of  the  body  of  such  heir 
male,  A  has  an  estate  for  life  only,  while  the  heir  male  of  his  body 

4.  Wills  V.  Palmer,  5  Burr.  2615;  "  heirs  of  the  body,"  of,  etc.  I  Washb. 
Angell  V.  Angell,  9  Q.  B.  328;  Haw-  Real  Prop.  51,  66.  But  cf.  Dennett 
kins  Wills,  170.  v.   Dennett,  43  N.  H.  499:    Mclntyre 

5.  Co.  Lit.  25  a;   Bornal  v.  Bernal,  v.  Ramsey,  23  Penn.  St.  317. 

3  M.  &  Cr.  559.  8.  Wright  v.  Vernon,  2  Drew.  439; 

6.  3  Salk.  336;  2  Jarm.  Wills,  325;       7  H.  L.  Cas.  35. 

Co.  Lit.  27  a;  Lindsey  v.  Colyear,  11  9.  2  Jarm.  Wills,  335.     The  expres- 

East,   548;   Hawkins  Wills,  172,  173.  sion    "lawful   heirs"    standing   alone 

7.  CufTee  v.  Milk,  10  Met.  366.  An  will  not  be  construed  heirs  of  the 
"  estate  tail,"  or  "  estate  in  fee-tail,"  body.  But  "  heirs  lawfully  begotten  " 
is  an  inherital)le  estate  which  will  have  in  a  devise  been  treated  as  cre- 
descend  to  certain  classes  of  heirs.  It  ating  an  estate  tail.  See  2  Jarm. 
is    properly    created     by     the     words  325;  7  Ell.  &  B.  295;  17  Beav.  254. 

706 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    553 

takes  an  estate  in  tail  male  as  purchaser.-^  To  the  same  effect  are 
other  cases,"  which  thus  distinguish  between  superadded  words  of 
inheritance  in  a  devise  to  the  heir  male,  as  here,  and  a  simple  de- 
vis©  to  A  for  life,  with  remainder  to  the  heir  male ;  for  in  the 
latter  instance  an  estate  tail  in  A  would  be  created,  and  the  next 
heir  male  would  take  no  estate  by  purchase,  the  words  being  con- 
strued as  words  of  limitation.^ 

So,  too,  if  the  devise  be  to  A  for  life,  with  remainder  to  the 
heir  male  of  his  body  and  the  heirs  or  heirs  of  the  body  of  such 
heir  male,  A  takes  for  life  only,  and  the  heir  male  of  his  body  takes 
an  estate  in  remainder  in  fee  or  in  tail.* 

§  553.  Estate  Tail  in  Devise ;  "Heirs ;"  Shelley's  Case. 

To  speak  more  generally  of  estates  tail.  The  rule  in  Shelley's 
Case  has  been  so  inflexibly  asserted  against  all  indications  of  what 
a  testator  really  meant,  that  many  pronounce  it  a  rule  of  law  and 
not  of  construction,  like  the  rules  which  forbid  perpetuity  and 
mortmain ;  ^  but  the  doctrine  seems  to  have  hardened  by  degrees, 
through  the  reluctance  of  the  courts  to  disturb  landed  titles.  The 
rule  of  Shelley's  Case  is  simply  that  where  real  estate  is  devised 
to  a  person,  and  there  is  a  limitation  besides,  either  mediate  or 
immediate,  to  his  heirs  or  the  heirs  of  his  body,  ''  heirs  "  must  be 
taken  as  a  word  not  of  purchase  but  of  limitation  only,  for  the 
marking  out  the  quality  of  the  estate,  and  that  the  ancestor  takes 
the  whole  estate  comprised  in  the  gift.  If,  therefore  the 
limitation  be  to  the  heirs  of  his  body,  he  takes  a  fee  tail, 
and  if  to  his  heirs  general,  a  fee  simple.^     This  doctrine  has  pre- 

1.  Archer's  Case,  1  Rep.  66;  2  4.  Willis  v.  Hiscox,  4  My.  &  Cr. 
Jarm.  Wills,  327;  Hawkins  Wills,  197;  Chamberlayne  v.  Chamberlayne, 
174;    Willis  V.   Hiscox,   4   My.  &   Cr.      6  E.  &  B.  625. 

197,  5.  Hawkins  Wills,  Preface;  2  Jarm. 

2.  Ibid.;  Sisson  v.  Seabury,  1  Wills,  332;  4  Kent  Com.  245;  1  Prest. 
Sumn.  235;   Doe  v.  Laming,  2  Burr.      Estates,  263. 

1100;    Canedy    v.    Haskins,    13    Met.  6.  Hawkins  Wills,  184,  185;  Perrin 

389,   46   Am.   Dec.    739.  v.    Blake,    4    Burr.    2579;    Jesson    v. 

3.  1  Cora.  289 ;  Chambers  v.  Taylor,  Wright,  2  Bligh,  1 ;  Fetherstone  v. 
2  My.  &  Cr.  387.  Fetherstone,  3  CI.  &  F.  67;   2  Jarm. 

707 


§  553  Law  of  wills.  [paet  vi. 

vailed  since  the  days  of  Coke,  and  probably  mucli  earlier,  in  all 
transfers  of  real  estate  whether  by  conveyance  or  by  last  will  and 
testament.  It  applies  as  well  whether  the  limitation  be  expressed 
to  heirs  at  once  or  after  some  intervening  estate.  And  the  bearing 
of  the  English  cases,  at  least,  appears  to  be  to  convert  inexorably 
the  entire  devise  to  the  ancestor's  favor  under  this  rule,  no  matter 
by  what  incident  superadded  to  the  technical  expression,  or  by 
what  express  and  emphatic  declaration  the  testator  shows  that  he 
meant  to  give  an  estate  for  life  merely,  and  not  one  of  inheritance 
to  the  first  donee ;  and  despite  any  and  all  attempts  which  the  will 
may  manifest  on  its  face  to  qualify  or  abridge  the  estate  in  fee  or 
in  tail  which  derives  its  virtue  from  words  inflexible  in  meaning.^ 
Xo  interposing  of  trustees  to  preserve  contingent  remainders,  no 
introduction  of  powers  of  jointuring  or  of  liberty  to  commit  waste, 
can  vary  such  a  construction.^  So,  on  the  other  side,  with  refer- 
ence to  the  estate  thus  expressed  to  the  heirs,  language  or  incidents 
utterly  inconsistent  with  an  estate  by  descent,  as  that  the  heirs 
shall  take  as  tenants  in  common,  or  according  to  the  ancestor's  ap- 
pointment, or  share  and  share  alike,  or  without  regard  to  sex  or 
seniority  of  age,  all  must  give  way  to  the  stern  and  unyielding  rule 
of  Shelley's  Case.*  In  other  words,  the  force  of  the  express  words 
of  inheritance  ovei'powers  all  distributive  directions  with  which 

Wills,  333,  and  Bigelow's  note;   Cur-  8.  Poole  v.  Poole,  3  B.  &  P.  627. 

tis  V.  Longstreth,  44   Penn.   St.   302 ;  9.  Jordan  v.  Adams,  supra.    And  see 

Jordan  v.  Adams,  9  C.  B.  N.  S.  483.  Perrin     v.     Blake,     and     other    cases 

Shelley's   Case,    1    Rep.    93,   does   not  supra;  2  Jarm.  Wills,  333;   Hawkins 

directly    involve    this    principle,    but  Wills,   184,   185 ;    Richardson  v.  Har- 

discusses    it    at    mu«h    length;    later  rison,    16    Q.    B.    D.    85;     Jesson    v. 

cases,  however,  confirmed  the  rule.   In  Wright,  2  Bligh,  1;  Sisson  v.  Seabury, 

a    note    to    2    Jarm.    Wills,    332,   Mr.  1    Sumn.   235;    Criswell's   Appeal,   41 

Bigelow    states    that    this    same    doc-  Penn.   St.   288;    5   R.   1.   273;    Daniel 

trine  had  been  laid  down  as  early  as  v.  Whartenby,  supra,  per  Mr.  Justice 

1325,   or  more  than   two  and  a   half  Swayne;    Simms    v.   Buist,    52    S.    C. 

centuries  before  Shelley's  Case.     And  554,  30  S.  E.  400;   Ewing  v.  Barnes, 

see    Daniel   v.    Whartenby,    17    Wall.  156  111.  61,  40  N.  E.   325;   169  Penn. 

642,  21  L.  Ed.  661.  St.  74,  32  A.  113. 

7.   See  Cockburn,   C.  J.,   in  Jordan 
V.  Adams,  supra. 

708 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    553 

these  words  may  happen  to  be  coupled,  and  such  inconsistent  direc- 
tions may  be  rejected  as  repugnant  to  the  devise. 

Yet,  while  in  the  course  of  time  substance  has  here  so  frozen 
into  the  form,  it  seems  to  have  been  conceded  all  the  while  in  prin- 
ciple that  whenever  it  is  perfectly  clear  in  a  given  case,  from  other 
language,  that  the  testator  used  the  technical  words  not  according 
to  the  rule  but  contrary  to  it,  his  intention  will  prevail  against  any 
mere  technical  expression.  As  where  he  says  in  effect  ''  by  heirs 
of  the  body  I  mean  first  and  other  sons  successively,"  etc.^  The 
effort  to  force  less  emphatic  language  under  this  exception  and 
thaw,  so  to  speak,  the  rule  in  Shelley's  Case  once  more  into  a  rule 
of  construction,  has  not  greatly  succeeded  however  in  England ;  ^ 
for  there  must  be  apt  and  direct  language,  according  to  the  better 
opinion,  for  contradicting  the  rule  which  gives  the  fee  to  the  an- 
cestor. American  precedents  yield  more  in  this  respect  certainly 
than  the  English ;  ^  and,  in  fact,  the  rule  in  Shelley's  Case,  whose 
policy,  never  clearly  revealed,  is  one  of  bygone  times,  has  been 
abolished  or  changed  by  statute  in  most  of  our  States,^  while  in 
others  the  courts  unaided  have  long  felt  competent  to  regard  it  as 
affording  a  mere  presumption  and  no  more,  in  those  rather  unfre- 
quent  cases  where  the  question  is  raised  for  testamentary  construc- 
tion.^   A  mass  of  our  earlier  American  precedents  have  lost  their 

1.  2  Ld.  Raym.  1561;  Goodtitle  v.  3.  Findlay  v.  Riddle,  3  Binn.  139, 
Herring,  1  East,  264 ;  2  Jarm.  Wills,  5  Am.  Dec.  355 ;  Blake  v.  Stone,  27  Vt. 
382.  475 ;   Slemmer  v.  Crampton,  50  Iowa, 

2.  See  23  Beav.  184;  2  Jarm.  379;  302;  Fulton  v.  Harmon,  44  Md.  251; 
3  C.  B.  349;  Hawkins  Wills,  187.  Burges  v.  Thompson,  13  R.  I.  712,  and 
This  subject  may  be  studied  at  length  cases  cited ;  Woodruff  v.  Woodruff, 
in  2  Jarm.  332-389.    The  rule  in  Shel-  32  Ga.  358. 

ley's  Case  applies  to  "  limitations  "  by  4.  See  statutes  e.  g..  of  New  Hamp- 

way  of  remainder,  but  not  to  a  lim-  shire,      Massachusetts,      Connecticut, 

itation  by  way  of  executory  devise  or  New  York,  New  Jersey,  Alabama,  and 

shifting  use.  which  would  vest  in  the  since  1850  in  nearly  all  of  the  United 

heir   of   the   ancestor   named   as   pur-  States.     Hawkins  Wills,  184,  Sword's 

chaser.     2   Jarm.   333.     See   rule   ap-  note;  2  Jarm.  332,  Bigelow's  note,  and 

plied   as   creating   an    estate   tail,    in  cases  cited;   62  N.  H.  44. 

Van  Grutten  v.  Foxwell,  (1897)   App.  5.   Smith  v.  Hastings,  29  Vt.   240; 

C.   658.  Hamilton  v.  Wentworth,  58  Me.  101; 

709 


§  553a 


LAW    OF    WILLS. 


[part    VI. 


drift  and  momentiTm  in  consequence,  and  to  us  whose  policy  is  to 
break  up  and  disperse  property  among  heirs  and  kindred,  the  Eng- 
lish canon,  which  stands  for  five  centuries  and  more  undisputed, 
loses  most  of  its  interest  except  for  purposes  of  judicial  com- 
parison.® 

§  553a.  The  Same  Subject;  Limitation  and  Purchase. 

As  a  word  of  limitation,  "  heirs  "  is  collective,  and  signifies 
all  the  descendants  ad  infinitum;  but  when  taken  as  a  word  of  pur- 
chase it  may  denote  particular  persons  who  answer  the  description 
at  a  particular  time  and  in  a  special  sense,  according  to  the  case  pre- 
sented.^ And  if  technical  words  are  used  not  collectively  for  the 
inheritable  successor,  but  distributively  for  particular  persons, 
such  persons  will  take  as  purchasers,  unless  the  artificial  rules  we 
have  considered  are  too  obstinate  to  yield  to  the  obvious  meaning 
of  the  instrument.^ 


15  Ohio,  559;  14  B.  Mon.  570;  Daniel 
V.  Whartenbury,  17  Wall.  639,  21  L. 
Ed.  661;  Clemens  v.  Hecksher,  185 
Penn.  St.  476,  40  A.  80;  121  N.  C. 
326,  28  S.  E.  489;  Westcott  v.  Bin- 
ford,  104  Iowa,  645;  65  Am.  St.  Rep. 
530,   74  N.  W.   18. 

6.  Yet  the  rule  of  Shelley's  Case  is 
still  enforced  in  certain  cases.  118 
Penn.  St.  94,  11  A.  802;  108  Ind. 
506;  9  N.  E.  467;  Ryan  v.  Allen,  120 
111.  648,  12  N.  E.  65;  101  N.  C.  162, 
7  S.  E.  657,  9  Am.  St.  Rep.  30;  147 
Ind.  388;  45  N.  E.  691;  134  S.  W. 
210,  104  Tex.  73;  Boyles  v.  Wagner. 
74  S.  E.  380,  91  S.  C.  183;  82  A.  905, 
82  N.  J.  L.   717. 

The  rule  of  Shelley's  case  is  not 
applicable  unless  the  particular  es- 
tate and  that  in  remainder  are  both 
equital)]e  or  both  Icf^al;  nor  if  the 
remaindor  to  heir  or  heirs  of  body  is 
contingent  in  form,  nor  if  there  is  an 


intermediate  estate  between  the  life 
estate  and  the  remainder  to  the  heirs. 
Vogt  V.  Graff,  32  Sup.  Ct.  134,  222  U. 
S.  404.  And  see  Harlan  v.  Maning- 
ton,  133  N.  W.  367,  152  Iowa  707. 

7.  Fulton  V.  Harman,  45  Md.  251. 

8.  Burges   v.    Thompson,    13    R.    I. 
712,   717. 

See  further  Connor  v.  Gardner,  82 
N.  E.  640,  230  111.  258;  Reimer  v. 
Reimer,  44  A.  316,  192  Penn.  571, 
73  Am.  St.  Rep.  833;  73  S.  W.  662, 
173  Mo.  572;  44  S.  E.  904,  101  Va. 
537,  63  L.  R.  A.  920;  46  A.  1094;  80 
N.  E.  249,  225  111.  408;  Webb  v. 
Sweet.  79  N.  E.  1024,  187  N.  Y.  172; 
50  A.  1001,  201  Penn.  201;  48  S.  E.  w 
785,  136  N.  C.  460,  67  L.  R.  A.  444 
(word  "lawful"  immaterial);  Cox 
V.  Jernigan,  70  S.  E.  949,  154  N.  C. 
584;  144  S.  W.  42,  147  Ky.  356;  82 
A.  472,  233  Penn.  405;  Terry  v.  Hood, 
55  So.  423,  172  Ala.  40  (estate  tail). 


710 


CHAP.    II.]       DETAILS   OF   TESTAMENT AEY   CONSTRUCTION.  §    554 

§  554.  The  Same  Subject:  "Issue." 

The  word  "  issue  "  is  of  itself  less  precise  and  technical  than 
"  heirs  of  the  body,"  though  collective  in  sense  and  serving  to  point 
out  as  objects  of  the  devise  all  the  generations  of  descendants.  The 
present  disposition  of  the  English  courts  appears,  however,  not- 
withstanding former  doubts,  in  favor  of  making  "issue"  as  synony- 
mous, so  far  as  possible,  with  "  heirs  of  the  body."  Hence  the 
rule  that  in  devises  of  real  estate,  "  issue  "  shall  prima  facie  he 
construed  as  a  word  of  limitation  and  equivalent  to  "  heirs  of  the 
body."  ^  Thus  a  devise  to  A  and  his  issue,  or  to  A  for  life  and 
after  his  decease  to  his  issue,  is  taken  to  vest  in  A  an  estate  tail ; 
nor  do  mere  words  of  distribution,  which  imply  that  the  issue  shall 
take  share  and  share  alike,  etc.,  vary  this  construction.  But  while 
the  rule  in  Shelley's  Case  scarcely  yielded  to  intention,  unless  at 
all  events  squarely  opposed  by  the  context,  a  more  gracious  pre- 
sumption here  is  found,  and  "  issue "  may  be  converted  into  a 
word  of  purchase  by  various  indirect  or  explanatory  expressions, 
to  be  found  in  the  reports ;  ^  as,  for  example,  in  a  devise  to  A  for 
life  with  remainder  to  his  issue  forever ;  ^  and  generally  wherever 
words  of  distribution  coupled  with  words  purporting  a  fee  are  an- 
nexed to  the  gift  to  issue.^  The  English  Wills  Act,  it  would  ap- 
pear, operates  to  give  the  issue  an  estate  in  fee  in  remainder  by 
purchase  in  every  devise  to  a  person  for  life,  and  after  his  de- 

77  A.  436,  228  Penn.  143 ;  Rowe  v.  der  to  issue  as  tenants  in  common, 
Moore,  72  S.  E.  468,  89  S.  C.  561;  followed  by  a  limitation  to  the  heirs 
McDaniel  v.  Hays,  78  N.  E.  1131,  74  general  of  the  issue.  Slater  v.  Dan- 
Ohio  St.  515;  84  A.  340,  118  Md.  210.  gerfield,  15  M.  &  W.  273;   Greenwood 

9.  Roddy  v.  Fitzgerald,  6  H.  L.  C.  v.  Rothwell,  5  M.  &  G.  628;  Hawkins 

823;  Woodhouse  v.  Herrick,  1  K.  &  J.  Wills,   191;   Powell  v.  Board  of  Mis- 

352;   Bradley  v.  Cartwright,  L.  R.  2  sions,  49  Penn.  St.  54.    Contra,  3  Edw. 

C.  P.   511;    2  Jarm.  Wills,   411,  412,  Ch.  1. 

and   Bigelow's   note;    Hawkins   Wills,  2.    Myers    v.    Anderson,    1    Strobh. 

192;  King  v.  Savage,  121  Mass.  303;  Eq.   344. 

61   Ga.    77;    Robins   v.   Quinliven,    79  3.  See  2  Jarm.  Wills,  411-439,  for  a 

Penn.  St.  333.  minute    examination    of    the    English 

1.  As  where,  for  instance,  there  is  cases;  Hawkins  Wills,  191-196. 
a  devise  to  one  for  life,  with  remain- 

711 


§    555  LAW    OF    WILLS.  [PART    VI. 

cease,  to  his  issue,  in  words  whicli  direct  or  imply  distribution 
among  the  issue.'* 

Our  American  doctrine  favors  a  flexible  construction  of  the 
word  "  issue  "  according  to  the  whole  purport  of  the  will  under 
consideration ;  and  while  courts  may  take  it  as  prima  facie  a  word 
of  limitation,  like  "  heirs  of  the  body  "  in  a  devise,  it  becomes  a 
word  of  purchase  whenever  the  context  prefers  that  meaning  by 
using  the  words  in  a  special  or  limited  sense.^  And  we  may  add 
that  many  of  our  local  acts  which  change  or  abolish  the  rule  in 
Shelley's  Case,  turn  "  issue  "  as  well  as  "  heirs  "  or  "  heirs  of  the 
body  "  into  words  of  presumable  purchase.®  Indeed,  American 
courts  at  this  day  are  obviously  disposed  not  to  apply  the  rigid, 
technical  rule  we  have  described  against  the  testator's  apparent  in- 
tent, to  cases  not  literally  within  its  scope.^ 

§  555.  The  Same  Subject:    "Children/'  etc. 

While  "  children  "  is  not  commonly  a  word  of  limitation,  the  in- 
fluence of  the  rule  in  Shelley's  Case  has  been  felt  in  devises  where 
this  term  was  used  instead  of  "  heirs  of  the  body  "  or  "  issue." 
An  early  precedent,  Wild's  Case,  established  in  England  that  a 

4.  2  Jarm.  Wills,  439;  Stat.  1  Vict.  476,  58  Am.  Rep.  428;  9  N.  E.  919. 
c.  26.  "  Issue  "  may  be  shown  by  the  And  see  78  Me.  226 ;  24  S.  C.  304 : 
context  to  mean  "  children,"  rather  136  Penn.  St.  142,  20  A.  645 ;  127  Ind. 
than  descendants  in  all  generations.  397,  22  Am.  St.  Rep.  652,  26  N.  E. 
2  Jarm.  440;  Ryan  v.  Cowley,  1  D.  &  895;  170  111.  65,  62  Am.  St.  Rep.  356, 
G.  7.  48  N.  E.  556.     And  see  Bowerman  v. 

5.  2  Jarm.  Wills,  411,  Bigelow's  Sessel,  61  N.  E.  369,  191  111.  651; 
note;  King  v.  Savage,  121  Mass.  303;  Englerth  v.  Kellar,  40  S.  E.  465,  50 
Robins  V.  Quinliven,  79  Penn.  St.  333;  W.  Va.  259;  85  S.  W.  169,  119  Ky. 
Daniel  v.  Whartenby,  17  Wall.  639,  899;  Moinsett  v.  Stevens,  48  S.  E. 
21  L.  Ed.  661;  Arnold  v.  Alden,  173  661,  136  N.  C.  171;  47  A.  841,  197 
111.  229,  50  N.  E.  704;  152  Penn.  St.  Penn.  615;  Willis's  Will,  55  A.  889, 
18,  25  A.  231.  25   R.  I.   332;    46  A.  495,   196  Penn. 

6.  Supra,  §  553.  426;   220  111.   181,  77  N.  E.  208;   152 

7.  As  where  the  words  "  lineal  de-  S.  W.  542,  151  Ky.  563;  102  N.  E.  823, 
scendants "  and  "issue"  are  used,  259  111.  471  (abolished  by  statute); 
instead  of  "heirs."  Henderson  v.  87  A.  706,  240  Penn.  425;  Lauer  v. 
Henderson,  64  Md.  185,  1  A.  72.  Cf.  Hoffman,  88  A.  496,  241  Penn.  315, 
117  Penn.  St.  127.    Or  where  "  heirs"  47  L.  N.  A.   (N.  S.)   676. 

has  the  sense  of  "  children."    109  Ind. 

712 


CHAP.    II.]       DETAILS   OF  TESTAMENTARY   CONSTRUCTION.  §    556 

devise  of  real  estate  to  A  and  bis  children,  A  having  no  children  at 
the  date  of  the  will,  would  vest  in  A  an  estate  tail,  ^'  children  "  be- 
ing here  construed  as  a  word  of  limitation.^  And  whether  A  had 
children  or  not  at  that  date,  a  devise  to  A  would  create  an  estate 
tail  if  such  appeared  to  be  the  testator's  intention ;  ^  though  the 
natural  inference  would  be,  if  A  and  his  children  were  then  all 
alive,  that  the  devise  was  to  them  all  as  one  class. ^  Even  the  word 
"  son  "  OT  "  daughter  "  might  be  construed  as  a  word  of  limitation 
with  like  effect;  ^  or  the  word  "  heir"  or  "  child  "  in  the  singular.^ 

§  556.  The    Same    Subject:     Estates   Tail   not   favored   in    the 
United  States. 

Some  of  the  more  subtle  and  intricate  refinements  of  construc- 
tion relative  to  estates  tail  may  be  studied  in  the  English  cases  and 
text-books,  where  it  will  be  found  that  the  statute  of  Victoria  has 
pruned  away  much  of  the  learned  excrescence  with  which  centuries 
had  loaded  this  subject.^  In  the  United  States  estates  tail  are  at 
this  day  either  entirely  abolished  and  converted  into  fees  simple, 
or  so  changed  as  to  vest  an  estate  for  life  in  the  first  taker  with  re- 
mainder over  in  fee,  or  otherwise  disfavored  by  the  local  enact- 
ment.^    And  judicial  inclination  in  this  country  is  to  interpret 

8.  Wild's  Case,  6  Rep.  17;  Hawkins  K  E.  3  C.  P.  32.  See  Chambers  a% 
Wills,  198;  2  Jarm.  Wills,  389;  Night-  Union  Trust  Co.,  84  A.  512,  235  Penn. 
ingale  v.  Burrell,  15  Pick.  104;  1  610;  Dicken  v.  Dicken,  152  S.  W.  258, 
Sumn.  359;  Hilliary  v.  Hilliary,  26  151  Ky.  438;  73  S.  E.  51,  70  W.  Va.  6. 
Md.  275;  Miller  v.  Hart,  12  Ga.  459.  1.  2  Jarm.  393. 

Some  States  refuse  to  follow  this  rule.  2.  Robinson    v.    Robinson,    1    Burr. 

Carr  v.  Estill,  16  B.  Mon.  309,  63  Am.  38;  2  Jarm.  Wills,  401-410,  where  this 

Dec.    548;    Turner    v.    Ivie,    5    Heisk.  subject  is  fully  examined. 

222.  3.   Co.   Lit.    9   b.   n.    (4);    Hawkins 

9.  Webb  V.  Byng,   2  K.  &  J.   669;  Wills,  198.     . 

affirmed  in  10  H.  L.  C.  171:   \\Tieat-  4.  2  Jarm.  Wills,  447-561;  Hawkins 

land  V.  Dodge,  10  Met.  502;   82  N.  E.  Wills,    199-204;    Appendix,    post. 

640,  230  111.  258.  5.   Van   Renssalaer  v.   Kearney,    11 

A  devise  to  "A  and  his  children  for-  How.  297,  13  L.  Ed.  703;  4  Kent  Com. 

ever,"  or  to  A  and  "his  children   in  14,  15;  73  Ga.  215;  Leathers  v.  Gray, 

succession,"  will  create  an  estate  tail.  101  N.  C.  162,  9  Am.   St.  Rep.  30. 
1  De  G.  F.  &  J.  613 ;  Roper  v.  Roper. 

713 


§    557  LAW    OF    WILLS.  [PAET    VI. 

each  will,  untrammelled  by  set  phrases,  and  so  that  the  intention  of 
the  maker  may  operate  as  freely  and  flexibly  as  possible  within  the 
lines  which  public  policy  assigns.® 


§  557.  Bequests  of  Personalty;  whether  Absolute  or  for  Life. 

In  bequests  of  personality,  on  the  other  hand,  there  never  was 
a  technical  rule  requiring  words  of  inheritance  to  be  annexed  to 
a  simple  gift;  and  technical  expressions  which  have  operated  only 
a  life  estate  or  conditional  fee,  so  far  as  land  was  concerned,  will 
constitute  an  absolute  gift  when  applied  to  personal  property.  Un- 
der a  simple  bequest  of  chattels,  for  instance,  A  takes  an  estate 
free  from  any  apparent  limitation  to  the  heirs  of  his  body,  and 
the  bequest  is  effectual  to  pass  the  whole  title.'' 

But  while  it  is  settled  by  numerous  cases.  English  and  Ameri- 
can, that  the  expression  "  heirs  of  the  body  "  creates  no  estate  tail 
in  personalty,  but  rather  confers  the  absolute  interest  upon  the 
first  taker,^  it  is  doubtful  whether  the  same  distinction  can  avail 
where  the  w^ord  "  issue  "  is  used  instead  f  for  a  bequest  to  "  A 
and  his  issue  "  would  seem  to  be  governed  by  the  same  rules,  so  far 
a?  issue  are  concerned,  as  a  gift  simply  to  issue ;  ^  at  the  same  time 
yielding  to  clear  indication  that  the  will  meant  to  give  not  to  A 
and  the  issue,  as  one  class,  but  to  A  for  life  and  then  to  the  issue 

6.  See  69  Vt.  272,  37  A.  747;  Hertz  Chatham  v.  Tothill,  and  other  cases 
V.  Abrahams,  36  S.  E.  409,  110  Ga.  707 ;       supra. 

44  A.  1078,  198  Penn.  651;  48  A.  896,  9.  Hawkins  Wills,  197.     It  is  ruled 

198  Penn.  614 ;  60  N.  E.  623,  64  Ohio  that  if  personal  estate  or  chattels  real 

St.   502;    129   P.   1131,   88   Kan.   708;  are  given  to  A  for  life,  and  after  his 

154  S.  W.  11,  152  Ky.  730;  100  N.  E.  decease,  to  his  issue.  A  takes  for  life 

510,  257  111.  101.  only,  and  the  issue  take  in  remainder. 

7.  Chatham  v.  Tothill,  7  Bro.  P.  C.  Knight  v.  Ellis,  2  Bro.  C.  C.  570; 
453;  19  Ves.  73;  2  Jarm.  562;  Wil-  Wynch,  Ex  parte,  5  D.  M.  &  G.  188; 
liams  V.  Lewis,  6  H.  L.  C.  1013;  Haw-  Myers's  Appeal,  49  Penn,  St.  111.  But 
kins  Wills,  188;  Cliilders  v.  Childers,  see  7  Rich.  Eq.  358;  Hawkins  Wills, 
21  Ga.  377;  5  Ired.  Eq.  7;  Dunlap  v.  197,  Sword's  note.  See  also  2  Jarm. 
Garlington,  17  S.  C.  567;  Mulvane  v.  Wills,  566-573. 

Kudo,  146  Ind.  476,  45  N.  E.  659.  1.  Supra,  §  535. 

8.  2    Jarm.    562,    American    note; 

714 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    558 

by  waj  of  remainder.^  At  all  events,  a  bequest  to  a  parent  and 
his  "  children  "  simply,  gives  prima  facie  to  parent  and  children 
concurrently ;  ^  although  slight  circumstances  may  show  that  the 
testator  intended  differently ;  ^  for  the  rule  in  Wild's  Case  does  not 
apply  to  personal  estate.^ 

§  558.  The  Same  Subject. 

As  for  expectant  interests  in  personalty  under  a  will,  there  can 
be  no  doubt  in  modern  times,  that  a  person  may  bequeath  personal 
property  to  A  for  life  or  a  designated  period,  with  remainder  over 
to  B ;  and  this  whether  the  goods  and  chattels  or  the  use  thereof 
be  given  to  A  by  the  express  terms  of  the  will.^  It  is  a  mere  ques- 
tion of  intention,  under  the  will ;  and  the  testator  thus  intending 
it,  A  has  merely  a  life  or  other  temporary  interest,  while  B  takes 
a  vested  interest  by  way  of  remainder.''  And  generally  speaking 
(subject,  of  course,  to  the  rule  against  perpetuities),^  one  may 
create  successive  life  or  temporary  interests  by  his  will.^  But  per- 
ishable articles,  or  those  like  wine,  corn,  and  other  articles  of  food 
or  drink,  whose  use  consists  in  their  consumption,  constitute  usu- 
ally an  exception ;  since  their  use  consists  in  consumption,  though 
no  presumption  of  this  kind  can  be  asserted  against  the  obvious 
force  and  meaning  of  the  will.^ 

A  testator  may  give  the  entire  beneficial  interest  in  a  bequest  to 

2.  Parkin   v.   Knight,   15   Sim.   83;  8.  Supra,  §   21. 

Hawkins  Wills,  197,  198.  9.  1  Schoul.  Pers.  Prop.  §  138. 

3.  Crockett  v.  Crockett,  2  Phill.  1.  1  Schoul.  Pers.  Prop.  §  140,  and 
553;  De  Witte  v.  De  Witte,  11  Sim.  cases  cited;  Perry  Trusts,  §  547;  Ran- 
41 ;  Cannon  v.  Apperson,  14  Lea,  553.  dall   v.   Russell,   3   Mer.    194.      If  the 

4.  Crockett  v.  Crockett,  supra.  testator  meant  otherwise,  it  is  easy  to 

5.  2  Jarm.  Wills.  753.  convert    the    perishable    articles    into 

6.  1  Schoul.  Pers.  Prop.  §  138 ;  2  money,  and  then  invest  for  the  benefit 
Kent  Com.  352;  2  Bl.  Com.  398;  Hyde  of  life  and  remainder  parties  respec- 
V.  Parrat,  1  P.  Wms.  1 ;  Smith  v.  Bell,  tively.  See  on  this  point  Bradley  v. 
6  Pet.  68,  8  L.  Ed.  322;  41  N.  J.  Eq.  Westcott,  13  Ves.  445;  Pennock  v. 
89,  3  A.  61.  Pennock,   L.   R.   13   Eq.    144;    Diehl's 

7.  lb.  See  152  S.  W.  770,  151  Ky.  Appeal,  36  Penn.  St.  120;  Kendall  v. 
635;  76  S.  E.  917,  114  Va.  372;  77  S.  Kendall,  36  N.  J.  Eq.  91,  96;  Smith 
E.  944,  94  S.  C.  308.  v.  Bell,  6  Pet.  68,  8  L.  Ed.  322. 

715 


§    559  LAW    OF    WILLS.  [PAET    VI. 

A,  and  at  the  same  time  bequeath  the  sum  in  trust,  so  that  the  in- 
come shall  be  paid  regularly,  but  the  principal  withheld  at  the 
trustee's  discretion.^  But  where  it  is  the  testator's  manifest  in- 
tent to  sever  the  product  from  its  source,  a  bequest  of  the  income 
of  an  estate  consisting  of  personalty  will  not  carry  an  absolute  es- 
tate in  the  principal.  '  Whether  property  be  consumable  or  not,  an 
absolute  power  of  disposal  in  the  first  taker  carries  by  presumption 
the  absolute  interest,  and  leaves  any  subsequent  limitation  of  the 
property  void.^  A  contingent  and  limited  power  to  dispose  (as  in 
case  of  need)  might  perhaps  be  otherwise  construed;  ^  but  an  un- 
limited and  positive  discretion  in  disposing  of  the  fund  for  the  in- 
dividual advantage  of  one's  self  and  others  confers  an  absolute  in- 
terest on  that  individual.^ 

§  559.  Devise  or  Bequest;  whether  Absolute  or  not. 

And  yet  the  decisions  on  such  points  seem  sometimes  to  run 
closely  together ;  and  intention  affords  the  only  sure  clue  to  their 
course.  A  bequest  of  non-consumable  personal  property  to  the 
testator's  wife  "  for  her  own  use,  benefit  and  disposal  absolutely,'^ 
and  remainder  after  her  death  to  a  son,  has  been  held  to  create  a 
life  estate  in  the  wife  and  a  vested  remainder  in  the  child  ;^  simply 
because  the  context  of  the  will  in  controversy  made  it  clear  that  the 
testator  intended  to  make  a  present  provision  for  the  one  and  a 
future  provision  for  the  other.  On  the  other  hand,  an  absolute  gift 
of  personal  property  to  the  wife,  together  with  the  life  income  of 
real  estate,  and  "  at  her  decease  the  property  remaining  to  be  di- 
vided equally  "  among  the  children,  has  been  pronounced  rather  an 
absolute  gift  of  personalty  to  the  wife,  with  full  right 
to    appropriate    the  residue    to    herself    after    the    estate    was 

2.  Millard's  Appeal,  87  Penn.  St.  5.  Stevens  v.  Winship,  1  Pick.  318, 
4.57.  11  Am.  Dec.  178. 

3.  Bentley  v.  Kauffman,  86  Penn.  6.  Yates  v.  Clark,  56  Miss.  212; 
St.  99;   39  Ch.  D.  50.  cases  svpra.     And   see  Moehring   Re, 

4.  Jones  v.  Bacon,  68  Me.  34,  28  154  N.  Y.  423,  48  N.  E.  818;  Glover 
Am.  Rep.  1;  Howard  v.  Carusi,  109  v.  Condell,  163  111.  566,  45  N.  E.  173. 
U.  S.  725,  27  L.  Ed.  1089;  4  Del.  Ch.  7.  Smith  v.  Bell,  supra. 

311. 

716 


€irAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTKUCTION.  §    559 

settled;^  for  the  gift  clearly  expressed  in  positive  terms  was  not 
to  be  cut  down  by  any  doubtful  inference  from  subsequent  words. 
Where,  however,  the  power  of  disposal  accompanies  a  bequest  or 
devise  of  a  mere  life  estate,  the  power  is  limited  to  such  disposition 
as  a  tenant  for  life  can  make,  unless  other  words  clearly  indicate 
that  a  larger  power  was  intended.^  A  bequest  unlimited  and  ac- 
companied by  an  absolute  power  of  disposition,  passes,  moreover, 
the  whole  interest,  notwithstanding  precatory  words  of  the  will  as 
to  the  manner  of  the  disposal.^  For  a  limitation  over  after  a  bequest 
of  personal  property  with  unlimited  power  of  disposition  in  the 
first  taker  would  be  an  inconsistent  estate.^ 

As  a  rule,  an  absolute  devise  in  terms  must  be  construed  in  con- 
nection with  other  clauses  of  the  will  which  serve  to  modify  its 
effect.  And  a  fee  which  is  given  in  the  first  part  of  a  will  may 
prove  to  be  so  restrained  by  subsequent  words  as  to  reduce  it  to  a 
life  estate.^  But  on  the  other  hand,  where  a  devise  in  fee  is  plainly 
given,  it  is  not  to  be  presumed  that  the  testator  meant  by  subse- 
quent words  to  cut  the  estate  down  to  one  for  life  unless  his  lan- 
guage clearly  indicates  such  intent.*  !N^or  is  a  devise  in  fee  simple 
the  less  absolute  in  interest  because  the  devise  stands  in  trust  and 
a  restraint  is  put  upon  the  annual  expenditure  of  income  or  the 
receipt  of  the  principal  by  the  beneficiary.^  It  is  well  established 
that,  notwithstanding  any  formal  limitation  over,  the  limitation 

8.  McKim  v.  Harwood,  129  Mass.  2.  This  unlimited  power  of  disposi- 
75.  tion  which  defeats  an  attempted  limi- 

9.  Brant  v.  Virginia  Coal  Co.,  93  tation  may  be  gathered  from  the 
U.  S.  326,  23  L.  Ed.  927;  Boyd  v.  whole  intent  of  the  will  rather  than 
Strahan,  36  111.  355;  164  111.  398,  45  express  words.  98  Tenn.  190,  39  S. 
N.  E.  820;  Smith  v.  Bell,  supra.  W.  12;  162  Mass.  144,  38  N.  E.  335, 
Many  of  the  precedents  to  this  effect  and  cases  cited. 

arise  with  reference  to  the  provisions  3.  North  v.  Martin,  6  Sim.  266;  Ul- 

made  for  a  testator's  widow,  and  are  rich's   Appeal,   86   Penn.   St.   386,    27 

biased  by  the  disfavor  with  which  the  Am.  Rep.  707;   Feame  Conting.  Rem. 

old   law  viewed  the   passage  of  one's  151. 

lands  from  his  own  family  to  that  of  4.    Fairfax   v.    Brown,    60   Md.    50. 

his  wife.  And  see  supra,  §§  478,  518,  549. 

1.  113  Ind.  18,  14  N.  E.  571;  §§  595-  5.   Fairfax  v.  Brown,  60  Md.  50. 

597. 

717 


§    560  LAW    OF    WILLS.  [PART    VI. 

over  is  void  when  the  will  shows  a  clear  purpose  to  give  an  ab- 
solute power  of  disposition  to  the  first  taker,®  On  the  other  hand, 
a  power  of  disposition  annexed  to  an  express  estate  for  life,  or  a 
charge  upon  it,  is  not  properly  construed  at  the  common  law  as 
enlarging  the  latter  into  a  fee  unless  inconsistent  with  an  estate 
for  life  only.^  And  generally  speaking  a  larger  estate  will  not  be 
implied  where  a  smaller  one  is  expressly  granted;  for  not  only 
favor  to  the  inheritance,  but  good  sense,  opposes  such  an  inference.* 
But  wherever  there  is  a  general  devise,  though  without  any 
specification  of  the  interest  devised,  and  an  absolute  power  of  dis- 
posal besides  the  devisee  takes  a  fee.^  Even  an  estate  for 
life  coupled  with  the  absolute  power  of  alienation  has  been  thus 
construed  into  a  fee.^ 

§  560.  Life  Estate  and  Remainder  in  Gifts ;  Executory  Devise. 

A  will  may  limit  real  estate  likewise,  for  life  or  years,  and  then 
over,  and  with  respect  to  their  time  of  enjoyment  create  estates 
either  in  immediate  possssion  or  in  expectancy,  so  long  as  the  rule 

6.  Ross  V.  Ross,  1  Jack.  &  W.  154;  W.  1111;  136  Mo.  20,  37  S.  W.  805; 
Ide  V.  Ide,  5  Mass.  500;  Jackson  v.  Wilson  v.  Turner,  164  111.  198,  45  N. 
Bull,  10  Johns.  18;   110  Mass.  432;  4      E.  512. 

Leigh.  408;  Howard  v.  Carusi,  109  U.  9.  Evans  v.  Folks,  135  Mo.  397,403, 

S.  725,  27  L,  Ed.   1089 ;   78  Me.   313,  37  S.  W.  126.     Modern  statutes  some- 

5  A.  73;   54  Conn.  470,  9  A.  136;   79  times  change  the  old  rule  of  construc- 

Ala.  63.  tion  so  as  to  favor  the  idea  that  all 

7.  Wetter  v.  Walker,  62  Ga.  142;  devises  of  real  estate  (e.  g.,  even  of 
Corey  v.  Corey,  37  N.  J.  Eq.  198 ;  53  income  for  life  with  a  power  of  sale 
N.  J.  Eq.  682,  33  A.  1050;  Hinkle's  annexed)  shall  pass  the  whole  estate 
Appeal,  116  Penn.  St.  490,  9  A.  938;  of  the  testator,  unless  by  a  devise 
Rhode  Island  Trust  Co.  v.  Commercial  over,  or  by  words  of  limitation  or 
Bank,  14  R.  I.  625.  The  gift  of  an  otherwise,  the  intention  to  devise  a 
estate  for  life  with  absolute  power  of  less  estate  is  established.  See  173 
sale  does  not  create  a  fee,  unless  the  Penn.  St.  181,  184,  33  A.  1043.  Inde- 
power  is  exercised  during  the  tenant's  pendently  of  such  statutes,  it  must 
lifetime.  Russell  v.  Eubanks,  84  Mo.  be  conceded  that  the  decisions  are 
82.  somewhat   close  and   contradictory. 

8.  See  Jones  v  .Jones,  66  Wis.  310,  1.  Parish  v.  Wayman,  91  Va.  430, 
57    Am.    Rep.    266,    28    N.    W.    177;  435. 

Gadd  v.  Stoner,  113  Midi.  089,  71  N. 

718 


CHAP.    II.]       DETAILS   OF   TESTAMENT AEY   CONSTRUCTION. 


5G0 


against  perpetuities  is  not  violated.  And  remainders  under  a  will 
may  be  vested  or  contingent ;  though,  in  case  of  doubt,  the  former 
and  simpler  should  in  tliese  days  be  preferred  in  construction.^ 
Under  the  doctrine  of  executory  devise,  moreover,  the  limitation 
of  a  future  estate  or  interest  in  lands  or  chattels  is  permitted  by  will 
where  limitations  in  a  deed  inter  vivos  would  have  failed  for  in- 
formality ;  yet  once  more  we  should  exclude  the  executory  devise 
in  construction  if  the  estate  can  fairly  pass  as  a  remainder;^  or  if 
an  absolute  estate  can  be  properly  inferred  in  the  first  taker.*    "We 


2.  Olney  v.  Hull,  31  Pick,  311; 
Miller  v.  Keegan,  14  Ind.  502 ;  2  Grant 
Gas.  28 ;  Smith  v.  West,  103  111.  332 ; 
1  Jarm.  Wills,  873;  2  ib.  88;  De 
Vaughn  v.  McLeroy,  82  Ga.  687,  10 
S.  E.  211;  41  Kan.  424,  3  L.  R.  A. 
690,  21  P.  288.  One  reason  for  such 
a  construction  at  common  law  is  that 
the  owner  of  the  first  particular  es- 
tate may  defeat  a  contingent  re- 
mainder, and  thus  make  the  gift  over 
by  the  will  a  dead  letter. 

3.  1  Jarm.  Wills,  864;  Hawley  v. 
Northampton,  8  Mass.  3 ,  5  Am.  Dec. 
6G;  66  Conn.  401,  34  A.  110. 

4.  Howard  v.  Carusi,  109  U.  S.  725, 
730,  27  L.  Ed.  1089,  and  cases  cited; 
102  N.  Y.  128,  55  Am.  Rep.  771,  6  N. 
E.   121. 

A  vested  remainder  is  where  a  pres- 
ent interest  passes  to  a  certain  and 
definite  person  but  to  be  enjoyed  m 
futuro;  and  there  must  be  a  particu- 
lar estate  to  support  it.  A  contingent 
remainder  is  where  the  estate  in  re- 
mainder is  limited  either  to  a  dubious 
and  uncertain  person  or  upon  the 
happening  of  a  dubious  and  uncertain 
event.  A  contingent  remainder,  if  it 
amount  to  a  freehold,  cannot  be  lim- 
ited on  an  estate  for  years,  nor  any 
estate   less   than  a   freehold.     A  con- 


tingent remainder  may  be  defeated 
by  the  determination  or  destruction 
of  the  particular  estate  before  the  con- 
tingency happens;  hence,  trustees  are 
appointed  to  preserve  such  remain- 
ders. An  executory  dexnse  is  such  a 
disposition  of  real  property  by  will, 
that  no  estate  vests  thereby  at  the 
death  of  the  devisor,  but  only  on  a 
future  contingency.  It  differs  from 
a  remainder  in  three  material  points: 
(1)  it  needs  no  particular  estate  to 
support  it;  (2)  a  fee  simple,  or  otlier 
less  estate  may  be  limited  by  it  after 
a  fee  simple;  (3)  a  remainder  may 
be  limited,  of  a  chattel  interest,  after 
a  particular  estate  for  life  in  the 
same  property.  The  law  will  not  con- 
strue a  limitation  in  a  will  into  an 
executory  devise  when  it  can  take 
effect  as  a  remainder ;  nor  a  remainder 
to  be  contingent  when  it  can  be  taken 
to  be  vested.  The  rule  is  that  estates 
shall  be  held  to  vest  at  the  earliest 
possible  period,  unless  the  testator's 
intent  be  clearly  manifested  to  the 
contrary.  Mr.  Justice  Swayne  in  Doe 
V.  Considine,  6  Wall.  458,  474,  18  L. 
Ed.  869,  and  cases  cited;  101  N.  W. 
195,  125  Iowa,  467;  92  N.  E.  592,  246 
111.  109;  81  A.  951,  108  Me.  512. 


719 


§  560  LAW  OF  WILLS.  [PART  VL 

find  the  corresponding  term  "  executory  bequest "  well  applied  in 
the  gift  of  personal  property  wherever  a  future  bequest  is  made. 
For  while  at  common  law  there  could  be  no  limitation  over  of 
chattels,  or  successive  interests,  we  find  gifts  for  life  or  temporarily 
and  then  over,  or  with  accumulation  of  income  in  the  hands  of 
tiustees,  and  to  vest  hereafter  in  beneficial  enjoyment,  pennitted 
in  modem  times,  and  in  fact  very  common,  within  the  usual 
bounds  which  limit  accumulation  and  postponement;  and  if,  as 
formerly,  remainders  in  personalty  cannot,  strictly  speaking,  be 
created  the  future  limitation  is  good  at  all  events  by  way  of  exec- 
utory bequest.^ 

By  latest  cases  of  good  authority  the  intention  of  the  testator, 
on  all  such  points,  is  to  be  gatliered  from  the  language  and  whole 
import  of  the  will,  aided  possibly  by  fair  extrinsic  evidence.  If 
the  primary  gift  conveys  and  vests  in  the  first  taker  an  absolute 
interest  in  the  property,  this  exhausts  the  entire  estate,  and  a  mere 
subsequent  gift  over  will  not  reduce  that  interest  to  a  life  estate. 
But  if  a  life  estate  was  evidently  intended  in  the  first  taker,  a 
power  of  disposition  coupled  with  the  gift  should  be  limited  in 
construction  accordingly.®    An  absolute  gift  in  the  first  taker  may 

5.  See  2  Jarm.  Wills,  879.  X.  Y.  S.  861.     As  to  the  "  executory 

The    subject    of    executory    devises  bequest "    with    future    or    expectant 

and    bequests    may    be    examined    at  interests,   see   36   S.   E.   404,   110   Ga. 

length  in  1  Jarm.  Wills,  864-881,  and  729;  49  S.  E.  690,  121  Ga.  693.     Un- 

Bigelow's  notes.  certainty  whether  the  remainderman 

A  valid  executory  devise  cannot,  at  will  outlive  the  tenant   for  life  does 

common   law,  be  limited  after  a  fee,  not   make   the   remainder   contingent, 

upon   the  contingency  of  the  non-ex-  101  N.  W.  195,  125  Iowa  467;   48  S. 

ecution  of  an  absolute  power  of  dis-  E.  785,  136  N.  C.  460,  67  L.  R.  A.  444. 

position  vested  in  the  first  taker,  and  Intent  prevails.     See  56  A.  854,  76 

such  a  limitation  over  is  void.     Van  Conn.  447   (alternate  remainder  upon 

Home  V.  Campbell,  100  N.  Y.  287,  53  contingency,   as  to  personal   estate)  ; 

Am.  Rep.  166,  3  N.  E.  316,  771.     And  46  S.  E.  756,  134  N.  C.  319;   Thomas 

see  15  R.  I.  78,  23  A.  45.  v.  Thomas,  53  So.  630,  97  Miss.  697; 

Where   there   is  no  clear   provision  Williams  v.  Green,  92  N.  E.  960,  246 

as    to    remainder,    intestacy    follows  111.  548;  Clarke  v.  Andover,  92  N.  E. 

after   the   life  estate  expires.     98   N.  1013,  207  Mass.  91  (cross-remainder)  ; 

E.   1064,  212  Mass.  135.  And  see  135  94  N.  E.  980,  249  111.  606;  82  A.  229, 

720 


•CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION. 


561 


consist  witla  a  provision  over  as  to  whatever  may  remain  undis- 
posed of  by  such  testator  by  will  or  otherwise.'^ 


§  561.  Devise  or  Bequest  by  Implication. 

A  devise,  whether  absolutely  or  for  life,  will  be  raised  by  im- 
plication under  a  will,  where  the  context  requires  it  and  the  devise 
is  not  express  in  terms.  Thus  the  gift  of  the  rest  and  residue  of 
one's  estate  to  his  children  after  the  death  of  the  wife  creates  a 
life  estate  in  the  wife  by  implication.^  And  again,  the  will  may 
so  refer  to  one  as  heir,  as  to  give  him  the  fee  without  words  of  ex- 
press devise;'  not  to  repeat  the  well-known  maxim  that  only  by 
an  express  devise  or  necessary  implication  can  the  heir-at-law  be 
disinherited.^  Implication  is  excluded  however  where  a  devise 
sufficient  in  effect  was  express;  it  is  not  deducible  from  mere  si- 


ne Md.  629;  76  S.  E.  47,  138  Ga.  710; 
150  S.  W.  676,  150  Ky.  546;  78  N.  E. 
1131,  74  Ohio  St.  575;  78  A.  908,  114 
Md.  122  (executory  devise);  89  N.  E. 
1127,  80  Ohio  St.  717;  101  N.  E.  178, 
207  N.  Y.  365. 

Local  statutes  sometimes  provide 
that  future  estates,  whether  vested  or 
contingent,  are  descendible.  6  Dem. 
(N.  Y.)  220.  As  to  the  renunciation 
of  such  a  gift  by  the  life  beneficiary, 
see  Defreese  v.  Lake,  109  Mich.  415, 
63  Am.  St.  Rep.  584,  32  L.  R.  A.  744, 
67  N.  W.  505. 

6.  Thus,  where  one  leaves  to  his 
wife  the  residue  of  his  estate,  with  a 
right  to  use  for  her  support,  and  if 
necessary  to  dispose  of  it  during  life, 
leaving  whatever  she  should  not  so 
dispose  of  to  vest  after  her  deatli  in 
the  cliildren  or  other  persons  as  pro- 
vided by  the  will,  the  natural  objects 
of  his  own  bounty,  it  is  fairly  con- 
cluded that  only  a  life  estate,  together 
with  the  powers  conferred,  vests  in 
tlie  widow,   and   that  the  subsequent 


provisions  of  the  residuary  clause  are 
valid  and  operative.  Chase  v.  Ladd, 
153  Mass.  126,  25  Am.  St.  Rep.  614, 
26  N.  E.  429 ;  Mansfield  v.  Sheldon,  67 
Conn.  390,  52  Am.  St.  Rep.  285,  35  A. 
271. 

7.  Knight  v.  Knight,  162  Mass.  460,* 
38  N.  E.  1131.  Cf.  ib.  143,  38  N.  E. 
365;  Parish  v.  Wayman,  91  Va.  430, 
435,  21  S.  E.  810;  Johnson  v.  John- 
son, 51  Ohio  St.  446,  38  N.  E.  61 ;  52 
A.  449,  71  N.  H.  412. 

A  remainder  cannot  be  limited  upon 
a  fee.  Strong's  Appeal,  81  A.  1020, 
84  Conn.  665.  And  see  Stout  v.  Clif- 
ford, 73  S.  E.  316,  70  W.  Va.  178;  32 
S.  Ct.  431,  224  U.  S.  224,  56  L.  Ed, 
741. 

8.  Macy  v.  Sawyer,  66  How.  Pr. 
381.  And  see  Sisson  v.  Seabury,  1 
Sumn.  235;  Hill  v.  Thomas,  11  S.  C. 
346;  1  Jarm.  Wills,  533;  Masterson 
V.  Townshend,  123  N.  Y.  458. 

9.  3  Keb.  589. 

1.  Supra,  §  479;  1  Jarm.  532. 


46 


721 


561 


LAW    OF    WILLS. 


[PAKT    VI. 


lence;  nor  can  it  be  admitted  at  all  except  as  a  means  of  carrying 
out  what  the  testator  appears  on  the  whole  to  have  really  meant, 
but  failed  somehow  to  express  as  distinctly  as  he  should  have  done.^ 

As  already  seen,  while  a  larger  estate  is  not  to  be  implied  where 
a  smaller  one  is  expressly  given,  or  vice  versa,  an  absolute  gift  may 
be  implied,  rather  than  any  temporary  interest,  from  the  incidents 
of  a  jus  disponendi  expressly  annexed  to  the  gift.^  So  too,  are 
gifts  in  favor  ultimately  of  third  persons  constituting  a  class  im- 
plied frequently,  from  powers  of  selection  and  distribution  among 
them  which  the  will  confers  upon  the  first  taker,  but  which  the 
latter  has  failed  to  exercise;  *  but  an  express  gift  over  in  default 
of  the  exercise  of  such  power  precludes  of  course  all  implication.^ 

In  short,  a  gift  by  implication  may  be  presumed  wherever  the 
conclusion  is  irresistible  that  the  testator  so  intended  it,^ 


2.  Patton  V.  Randall,  1  J.  &  W. 
196;  Rathbone  v.  Dyckman,  3  Paige, 
27;  1  Jarm.  Wills,  526,  532,  and  Bige- 
low's  note;  1  Stra.  427;  Adams  v. 
Adams,  1  Hare,  537;  Nickerson  v. 
Bowly,  8  Met.  424;  Rawlins's  Trusts, 
45  Ch.  D.  299.  Unless  convinced  that 
'the  testator  really  intended  to  make 
a  gift,  a  court  should  not  construe  in 
favor  of  a  gift  by  implication.  Bis- 
hop V.  McClelland,  44  N.  J.  Eq.  450, 
16  A.  1.  See  Hyde  v.  Rainey,  82  A. 
781,  233  Penn.  540;  Trust  Co.  Re,  125 
N.  Y.  S.  159,  713   (income  implied). 

It  appears  sometimes  to  be  consid- 
ered that  the  rule  of  implication  does 
not  apply  to  bequests  as  in  devises. 
See  1  Ired.  Eq.  45.  But  admitting 
that  limitations  are  less  to  be  favored 
in  gifts  of  personalty  than  under  a 
gift  of  land,  there  seems  no  good  rea- 
son why  a  life  interest  or  an  absolute 
interest  may  not  be  imj)licd  under  a 
bequest  where  the  intention  of  the 
will  would  otherwise  be  thwarted.  See 
1  Jarm.  544.  But  the  ne.xt  of  kin, 
like  tiie   heir,  is  not  to  be  displaced 


without  express  words  or  necessary 
implication.  3  Ves.  303;  supra,  §§ 
479-482. 

"  Implication  may  either  arise  from 
an  elliptical  form  of  expression,  which 
involves  and  implies  something  else  as 
contemplated  by  the  person  using  the 
expression,  or  the  implication  may  be 
founded  upon  tlie  form  of  gift,  or  upon 
a  direction  to  do  something  which 
cannot  be  carried  into  effect  without 
of  necessity  involving  something  else 
in  order  to  give  effect  to  that  direc- 
tion, or  something  else  which  is  a 
consequence  necessarily  resulting  from 
that  direction."  Lord  Westbury,  in 
Parker  v.  Tootal,  11  H.  L.  C.  143, 
161. 

3.  Supra,  §§  557-559. 

4.  2  Jarm.  Wills,  551;  Brown  v. 
Higgs,  4  Ves.  708,  5  Ves.  495,  8  Ves. 
561;  Butler  v.  Gray,  L.  R.  5  Ch.  30. 
But  of.  Weeks  Re,   (1897)    1  Ch.  289. 

5.  Roddy  v.  Fitzgerald,  6  H.  L.  C. 
823. 

6.  Robinson  v.  Greene,  14  R.  I.  181; 
Blake's  Trusts,  L.  R.  3  Eq.  799. 


722 


CilAP.    II.]        DETAILS   OF   TESTAMENTARY    CONSTKUCTION.  §    5G2 

§  562.  Gift  in  General,  whether  Vested  or  Contingent  in  In- 
terest. 
As  a  rule,  a  devise  or  a  bequest  is  to  be  presumed  vested,  rather 
than  contingent  in  interest;  for  whether  the  property  be  real  or 
personal,  the  law  favors  the  vesting  of  estates ;  at  the  same  time 
that  the  manifest  purpose  of  the  will  cannot  be  thus  subverted.  A 
will  takes  effect  naturally  on  the  death  of  the  testator;  consequently 
interests  under  that  will  whether  immediate  or  prospective  and 
by  way  of  remainder  in  term  of  enjoyment,  vest  prima  facie  at 
once,  and  words  of  futurity  contained  in  the  gift  should  be  taken 
in  the  sense  that  no  condition  precedent  is  imposed.'^  The  addition 
of  equivocal  and  not  contrary  expressions  to  a  gift  first  made  in 
tenms  plainly  vesting  an  immediate  estate  will  not  be  accepted  in 
a  contrary  sense.^    Thus,  if  the  gift  in  A's  favor  is  to  be  set  apart 


7.  1  Jarm.  Wills,  799-S63,  notes; 
Foster  v.  Holland,  56  Ala.  474;  Dale 
V.  White,  33  Conn.  294;  43  Md.  307; 
83  Ky.  481;  57  Conn.  295,  14  Am.  St. 
Rep.  101,  18  A.  100;  White  v.  Keller, 
68  Fed.  796;  116  Ind.  498,  19  N.  E. 
468;  Goebel  v.  Wolf,  113  N.  Y.  405, 
10  Am.  St.  Rep,  464,  21  N.  E.  736 ;  64 
Conn.  344,  30  A.  55;  143  Ind.  248,  42 
N.  E.  623;  Smith  v.  Parsons,  146  N. 
Y.  116,  40  N.  E.  736;  81  N.  E.  654, 
196  Mass.  35;  45  So.  584,  153  Ala. 
420;  Kountz's  Estate,  62  A.  1103,  213 
Penn.  390,  3  L.  R.  A.  (N.  S.)  639;  78 
N.  E.  422,  192  Mass.  367,  116  Am.  St. 
Rep.  246,  10  L;  R.  A.  (N.  S.)  1143; 
60  S.  E.  622,  108  Va.  67;  115  X.  W. 
342,  135  Wis.  60;  62  A.  730,  101 
Me.  26;  Bosworth  v.  Stockbridge,  75 
N.  E.  712,  189  Mass.  36  (income  ac- 
cumulation) ;  60  N.  E.  116,  190  111. 
47;  Carr  v.  Smith,  57  N.  E.  1106, 
161  N.  Y.  636;  98  N.  E.  401,  205  N. 
Y.  304;  82  A.  699,  109  Me.  93,  132 
Nev.  843,  152  Iowa  477,  68  S.  E.  966, 
87  S.  C.  55;  138  N.  W.  629,  151  Wis. 


231;  102  N.  E.  1077,  260  111.  98;  76 
S.  E.  917,  114  Va.  372  (rule  the  same 
although  estates  are  created  through 
a  trust)  ;  10  N.  E.  62,  214  Mass.  144. 

8.  Kimble  v.  White,  50  N.  J.  Eq. 
28,  24  A.  406;  §  478;  63  Vt.  391;  22 
A.  630. 

As  to  the  precise  distinction  be- 
tween the  terms  "  vested  "  and  "  con- 
tingent," there  is  some  discussion; 
and  the  logical  antithesis  may  not  be 
quite  the  same  in  gifts  of  land  as  of 
personalty.  The  general  doctrine  in 
this  country  is  that  a  postponement 
will  not  of  itself  create  a  contingency, 
unless  it  be  upon  an  event  of  such  a 
nature  that  the  testator  must  be  pre- 
sumed to  have  made  no  gift  unless 
the  event  happened,  or,  as  it  is  some- 
times put,  unless  the  time  be  an- 
nexed to  the  substance  of  the  gift.  1 
Bradf.  (N.  Y.)  154.  See  Hawkins 
Wills,  223.  The  English  disposition 
is  or  has  been  to  treat  the  rule  as  ,to 
the  vesting  of  gifts  by  will  differ- 
ently, according  as  the  subject-matter 


723 


§    562  LAW    OF    WILLS.  [pART    VI. 

or  payment  made  him  at  some  future  time;  or  if  A  is  to  take  a 
fee  or  tlie  capital  fund  or  residue  after  the  termination  of  a  life 
estate  or  some  other  beneficial  interest  therein  of  a  temporary  kind 
in  B ;  or  if  income  is  to  accumulate  during  a  legatee's  minority  or 
to  a  designated  date;  in  these  and  similar  instances  the  intention 
presumed  from  the  language  of  the  will  is  to  postpone  not  the  vest- 
ing of  A's  interest,  but  the  time  of  beneficial  enjoyment,  and  con- 
sequently his  interest  vests  at  once  as  well  as  B's.*  Any  present 
vested  interest  in  the  income  carries  prima  facie  a  vested  interest  in 
those  who  shall  finally  take  the  capital,  nor  does  delay  in  settling 
the  testator's  estate  and  paying  over  prevent  a  legacy  from  vesting 
at  the  time  of  the  testator's  death.^  Direction  to  sell  or  to  pay  and 
apply  at  a  late  period  prescribed  are  consistent  wiith  a  vested  re- 
mainder.^ In  short  the  law  does  not  favor  the  abeyance  of  estates 
but  estates  by  way  of  remainder  vest  at  the  earliest  period  possible, 
unless  the  will  shows  a  contrary  intention.  x\nd  vested  interests  li- 
able to  devestment  are  preferred  in  construction  to  interests  con- 
tingent.^ 

Words  and  expressions  literally  contingent  in  import,  or  thoso 
at  least  to  which  courts  are  wont  to  give  that  technical  meaning, 
bend  to  this  construction  in  favor  of  vesting  the  estate  or  interest 
upon  due  regard  for  the  whole  scope  and  tenor  of  the  will.*    Thus 

is  personal  estate,  real  estate,  or,  once  graham,   169   111.   432,   48   N.   E.   561, 

more    perhaps,    a    legacy    charged    on  49  N.  E.  320. 

land.     But  our  American  policy  tends  3.  The  gift  of  a  contingent  future 

to  harmonize.     129  Ind.  59,  28  N.  E.  interest    is    something    more    than    a 

310.  mere    possibility.      Bank   v.    Billings, 

9.    2    Jarm.    Wills,    799,    835,    837,  96  N.  E.   1122,   203  N.   Y.   556.     See 

Bigelow's   note,    and    numerous   cases  138  N.  Y.  S.  150;  Grothe's  Estate.  85 

cited;  Monkhouse  v.  Holme,  1  Bro.  C.  A.  141,  237  Penn.  263;  137  S.  W.  775, 

C.  300.  143  Ky.  849. 

1.  Dawson  v.  Killet,  1  Bro.  C.  C.  4.  1  Jarm.  Wills,  805,  and  cases 
124;  9  Gush.  516;  Birdsall  v.  Hew-  cited;  Colt  v.  Hubbard,  33  Conn.  281; 
lett,  1  Paige,  32,  19  Am.  Dec.  392;  Brown  Re,  154  N.  Y.  496,  48  N.  E. 
OifTord  v.  Thorn,  1  Stockt.  702;  Scott  890;  153  N.  Y.  466,  47  N.  E.  812; 
V.   West,  63  Wis.  529,  24  N.  W.  161.  Woodman   v.   Woodman,   89   Me.   128, 

2.  Do  Vaughn  v.  McLcroy,   82   Ga.  35   A.  1037. 
G87,   10   S.   E.   211;    Ingraliam  v.   Tn- 

724 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY    COXSTKUCTION. 


562 


the  simple  postponement  of  enjoyment  under  the  gift  does  not 
create  of  itself  a  contingency;  for  while  a  gift  when  (or,  rather,  if) 
one  reaches  a  certain  age  or  marries  is  necessarily  uncertain  in 
event,  a  gift  upon  the  death  of  another  person  hinges  upon  an 
event  which  is  sure  sooner  or  later  to  happen ;  hence  the  interest 
may  be  presumed  vested  in  the  latter,  though  not  in  the  former 
case,  because  the  event  here  is  certain.^  There  is  no  lapse  of  the  re- 
mainderman's gift  by  his  death  after  the  testator  and  before  the 
life  beneficiary.^  And  so  far  is  this  rule  carried,  that  whenever 
the  prior  estate  will  terminate  by  an  event  certain,  the  remainder 
must  be  presumed  a  vested  one,  even  though  the  event  may  happen, 
before  the  expiration  of  the  estate  limited  in  remainder. '^  A  re- 
mainder is  not  to  be  considered  contingent  under  a  will  by  a  mere 
uncertainty  as  to  the  amount  of  property  that  may  remain  over 
when  the  particular  estate  expires.^ 


5.  See  Thomas  v.  Anderson,  6  C.  E. 
Green,  22;  Taylor  v.  Mosher,  29  Md. 
443;    117  Penn.  St.  14,  11  A.  520. 

6.  Chafee  v.  Maher,  17  R.  I.  739; 
ib.  727,  24  A.  773,  742.  Even  the  use 
of  such  words  as  "  from  and  after " 
the  life  tenant's  deatli  does  not  post- 
pone so  as  to  make  the  gift  con- 
tingent. 135  N.  Y.  137,  31  N.  E.  1008, 
A  prospective  gift  thus  vested  under  a 
will  passes  to  the  executor  or  admin- 
istrator of  the  prospective  legatee  in 
the  event  of  the  latter's  death  before 
the  death  of  the  life  tenant,  wliere 
the  will  makes  no  provision  for  dis- 
posing of  the  fund  in  case  such  lega- 
tee never  comes  into  full  possession. 
McCarty  v.  Fish,  87  Mich.  48,  49  N. 
W.  513.' 

7.  Kennard  v.  Kennard,  63  N.  H. 
303.  Here  the  reversion  to  A  was  on 
the  "  decease  or  marriage "  of  the 
testator's  widow;  and  A's  widow 
(not    remarrying)     survived    A;    yet 


A's  reversion  vested.  "  It  is  the 
present  [certain]  right  of  future  en- 
joyment whenever  tlie  possession  be- 
comes vacant,  and  not  the  certainty 
that  the  possession  will  become  vacant 
before  the  estate  limited  in  remain- 
der determines,  that  distinguishes  a 
vested  from  a  contingent  remainder." 
Ib.  310.  And  see  Lenz  v.  Prescott, 
144  Mass.  505,   11  N.  E.   923. 

'•  Die  before  being  entitled  "  held, 
as  to  remaindermen  to  mean  "  die 
before  they  come  into  possession." 
31  Ch.  D.  75. 

Legacies  though  described  as  not  to 
be  paid  until  one  year  after  A's  death, 
vest  at  once  under  the  will.  Pond  v. 
Allen,  15  R.  I.  171,  2  A.  302.  The 
word  "  heirs,"  when  uncontrolled,  has 
the  effect  of  vesting  a  legacy  which 
would  otherwise  be  contingent.  117 
Penn.   St.   14,  11  A.   520. 

8.  Because  e.  g.  of  some  power  of 
disposal  given  meanwhile.     Woodman 


725 


§  562 


LAW    OF    WILLS. 


[part   VI. 


On  the  other  hand,  no  favor  to  vested  interests  nor  any  theory 
should  defeat  the  plain  intention  of  the  will  in  controversy.  Nor 
can  the  absurd,  inconvenient  or  illegal  consequences  of  treating  the 
interest  as  contingent  and  postponed  prevent  such  a  construction 
if  the  testator  has  clearly  limited  the  estate  in  terms  of  contin- 
gency; ^  nor  can  the  probability  that  the  testator  in  so  limiting  the 
estate  has  misapprehended  his  power  of  disposition ;  ^  unless,  in- 
deed, too  strict  an  adherence  to  the  letter  of  the  instrument  would 
defeat  the  spirit  of  its  provisions.^ 

A  gift  made  expressly  to  take  effect  on  a  contingency  will  not 
arise  unless  the  contingency  happens ;  and,  per  contra,  a  vested  gift 
is  not  divested  unless  all  the  events  which  are  to  precede  the  vesting 
elsewhere  concert.^    A  gift  with  limitation  even  upon  a  contingency 


V.  Woodman,  89  Me.  128,  35  A.  1037. 
And  see  Burke  v.  Burke,  102  N.  E. 
293,  259  111.  262. 

9.  1  Jarm.  821 ;  Holmes  v.  Cradock, 
3  Ves.  317;  Richardson  v.  Wheatland, 
7  Met.  171 ;  Wallace  v.  Minor,  86  Va. 
550. 

1.  Vessey  v.  Wilkinson,  2  T.  R.  209; 
Sears  v.  Russell,  8  Gray,  86;  Dono- 
hue  V.  McNiehol,  61  Penn.  St.  73. 
Vesting  held  postponed  to  the  death 
or  marriage  of  tiie  widow  in  67  Md. 
465,  10  A.  74;  26  S.  C.  450.  This 
was  taken  to  be  the  testator's  mean- 
ing. And  see  Benner's  Will,  113  X. 
W.  663,  133  Wis.  325;  53  S.  E.  620, 
141  N.  C.  97;  Weil  v.  King,  104  S.  W. 
380,  31  Ky.  Law.  1016;  Francis  Re, 
(1905)  2  Ch.  295;  61  A,  808,  212 
Penn.  119;  Van  Gallow  v.  Brandt, 
134  N.  W.  1018,  168  Mich.  642;  63 
S.  E.  728,  134  Ga.  813. 

2.  1  Jarm.  Wills,  824;  Bradford  v. 
Foley,  Doug.  63;  Hawkins  Wills,  223. 

3.  Co.  Lit.  219  I);  7  East,  2G1;  1 
Jarm.   827. 

If  we  consider  our  policy  as  favor- 


ing all  the  interests  under  a  will  as 
vested  rather  than  contingent,  the 
precedents  are  not  so  difficult  to  recon- 
cile as  their  literal  expression  im- 
ports. Thus,  a  gift  is  to  A  if  he 
reaches  a  certain  age  or  marries;  and 
here  it  may  be  presumed  that 
the  testator  meant  that  unless 
A  reached  that  age  or  married,  he 
should  not  have  it;  the  gift  is  there- 
fore contingent,  or  coupled  with  a 
condition  precedent  to  vesting.  See 
Leake  v.  Robinson,  2  Mer.  363; 
Hawkins  Wills,  224;  88  A.  673,  241 
Penn.  452.  And  the  same  might  be 
true  of  members  of  a  class.  lb.  But 
if  the  will  appears  to  give  to  A  or  to 
members  of  a  class,  and  merely  adds 
a  direction  as  to  the  time  of  payment, 
payable  at  majority,  divided  among 
them  for  convenience  at  some  future 
period  stated,  etc.,  and  the  more  so 
if  the  income  is  meanwhile  to  be  paid 
to  the  beneficiary  or  beneficiaries,  it 
is  not  clear  that  the  testator  meant 
to  annex  the  time  as  an  essential  to 
the  substance  of  the  gift;    hence  the 


726 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.       §    5G2a 

becomes  absolute  upon  a  failure  of  the  contingency.''  And  intersts 
under  a  will  may  vest  immediately  upon  the  testator's  death,  sub 
ject  to  a  possible  divestment  afterwards.^  Equitable  estates  vest 
presumably  at  a  testator's  death ;  for  equitable  estates  vest  and  de- 
scend like  legal  estates.^ 

§  562a.  Vested  Estates  Defeasible,  etc. 

In  fact,  one's  vested  estate  is  often  liable  to  be  actually  defeated 
and  divested,  or  qualified  or  limited,  under  some  provision  con- 
tained in  the  will.^^     But  whenever  the  construction  of  a  will  is 


doubt  is  resolved  in  favor  of  vesting 
the  gift  or  gifts.  See  Hawkins  Wills, 
225,  232;  Lister  v.  Bradley,  1  Hare, 
12.  Where  futurity  is  announced  as 
the  substance  of  the  gift  the  vesting 
is  suspended,  but  if  it  appears  to 
relate  only  to  the  time  of  payment 
the  gift  vests  at  once. 

As  for  devises  of  real  estate.  Best, 
C.  J.,  may  be  quoted :  "  It  has  long 
been  an  established  rule  for  the  guid- 
ance of  the  court,  that  all  estates  are 
to  be  holden  to  be  vested,  except  es- 
tates in  the  devise  of  which  a  condi- 
tion precedent  is  so  clearly  expressed 
that  the  courts  cannot  treat  them  as 
vested  without  deciding  in  direct  op- 
position to  the  terms  of  the  will." 
Duffield  V.  Duffield,  1  D.  &  CI.  311. 

If  real  estate  is  devised  to  A  "  if  " 
or  "  when "  he  shall  attain  a  given 
age,  with  a  limitation  over  in  the 
event  of  his  dying  sooner,  the  attain- 
ment of  that  age  is  held  to  be  not 
a  condition  precedent  but  a  condition 
subsequent,  and  A  takes  an  imme- 
diate vested  estate  subject  to  be  di- 
vested upon  his  death  under  the  speci- 
fied age.  Phipps  v.  Ackers,  9  CI.  & 
F.  583;  1  B.  &  P.  N.  R.  324;  Roome 
v.  Phillips,  24  N.  Y,  465.  This  con- 
struction appears   sometimes   favored 


in  bequests  of  personalty,  especially 
if  real  and  personal  property  are 
embraced  in  one  gift.  12  B.  Mon.  117; 
Hawkins  Wills,  240.     And  see  c.  4. 

The  use  of  the  word  "  proviso  "  in 
modern  times  favors  the  idea  of  a 
fee  upon  trust  rather  than  a  devise 
upon  condition.  Whether  words  in  a 
devise  shall  or  shall  not  constitute 
common-law  conditions  whose  breach 
will  work  a  forfeiture  and  defeat  the 
whole  devise,  must  be  gathered  from 
the  whole  instrument  and  not  from 
particular  expressions.  Stanley  v. 
Colt,  5  Wall.  119,  18  L.  Ed.  502.  See 
also  Cropley  v.  Cooper,  19  Wall.  1G7, 
23  L.  Ed.  109. 

A,  stranger  cannot  take  advantage 
of  the  breach  of  a  condition  subse- 
quent under  a  will.  Webster  v. 
Cooper,  14  How.  488. 

4.  Derickson  v.  Garden,  5  Del.,  Ch. 
323. 

5.  Neilson  v.  Bishop,  45  N.  J.  Eq. 
473,  17  A.  962;  Pickworth  Re,  (1899) 
1  Ch.  642;  Field  v.  Peeples,  180  111. 
376,  54  N.  E.  304. 

6.  Bolton  V.  Bank,  50  Ohio  St.  290, 
33  N.  E.  1115;  McCarty  v.  Fish,  87 
Mich.  48,  49  N.  W.  513. 

6a.  Coates  v.  Lunt,  96  N.  E.  685, 
210   Mass.    314    (sale   by   life  tenant 


727 


563 


LAW    OF    WILLS. 


[PAET    VI. 


doubtful  the  leaning  should  be  in  favor  of  an  absolute  rather  than 
a  defeasible  estate.^*'  Correspondingly  a  nominally  defeasible  fee 
may  become  a  fee  simple  absolute.^° 

§  563.  Beneficiaries:    when  ascertained. 

At  what  time  beneficiaries  should  he  ascertained  is  an  important 
point  to  consider.  Since  vested  interests,  whether  by  way  of  re- 
mainder or  otherwise,  are  preferred  in  construction  to  those  which 
are  contingent,  so  should  the  ascertainment  of  any  class  which  is 
described  in  the  will  be  referred  to  the  earliest  possible  period  con- 
sistent with  a  fair  interpretation  of  that  will.  Thus,  to  take  the 
word  "  heir,"  If  the  will  gives  to  the  testator's  own  heir,  the  gift 
vests  naturally  at  the  testator's  own  death ;  if  to  the  heir  of  A,  then 
at  A's  death ;  and  in  either  case,  as  soon  as  there  exists  any  one 
who  answers  the  description  of  heir.'^     This  rule  of  presumption 


under  a  permissive  power)  ;  95  N.  E. 
951,  209  Mass.  585;  Gaither  v.  Town- 
send,  78  A.  908,  114  Md.  122;  70  S. 
E.  636,  154  N.  C.  374;  Marshall  v. 
Clause,  79  A.  511,  230  Penn.  344; 
Lord  V.  Pearson,  83  A.  1102,  108  Me. 
565. 

66.  Long's  Estate,  77  A.  924,  228 
Penn.  594 ;  Hoffman's  Will,  124  N.  Y. 
S.  1089;  Reed  v.  Welborn,  97  N.  E. 
669,  253  111.  338. 

6c.  Hultz  V.  Holzbach,  82  A.  489, 
233  Penn.  367  (widow  dying  without 
having  remarried).  And  see  Van 
Gallow  V.  Brandt,  134  N.  W.  1018,  253 
111.  338. 

7.  Pilkington  v.  Spratt,  5  B.  &  Ad. 
731;  1  Vern.  35;  2  Jarm.  Wills,  62, 
88;  Minot  v.  Tappan,  122  Mass.  38. 
Aside  from  the  rule  in  Rlielley's  Case, 
therefore,  a  gift  of  land  to  A  with 
remainder  to  his  heirs  vests  the  re- 
mainder immediately  in  the  heirs  ap- 
parent. Moore  v.  Little,  41  N.  Y.  66 ; 
Mortimer  v.  Slater,  7  Ch.  D.  322;  4 
Aj)p.    Cas.    448.      By    "  my    heirs-at- 


law "  in  a  will,  the  testator  is  pre- 
sumed to  mean  that  those  shall  take 
who  are  his  heirs-at-law  at  his  de- 
cease. Whall  V.  Converse,  146  Mass. 
345,  15  N.  E.  660.  A  testator  gave 
property  in  trust  for  his  children, 
with  provisions  for  their  support  and 
for  vesting  in  each  absolutely  on  his 
suitable  marriage.  One  child  died 
unmarried;  yet  it  was  held  that  this 
child's  share  had  vested,  and  that 
marriage  was  not  a  condition  pre- 
cedent. Toner  v.  Collins,  67  Iowa, 
369,  56  Am.  Rep.  346,  25  N.  W.  284. 
In  40  N.  J.  Eq.  443,  3  A.  260,  it  was 
held  that  the  estate  vested  in  chil- 
dren at  the  time  of  the  testator's 
death  and  not  at  the  time  of  distri- 
bution. 

Where  a  gift  is  to  nephews  and 
nieces,  with  provision  for  representa- 
tion in  case  any  one  of  them  should 
predecease  the  testator,  the  children  of 
a  nephew  who  was  dead  at  the  date 
of  the  will  are  not  included.  43  Ch. 
D.  569. 


728 


CHAP.    TI.]        DETAILS   OF   TESTAMENTAEY    CONSTRUCTIOlSr. 


563 


avails  for  gifts  of  personalty  as  well  as  real  estate,  so  convenient 
is  it  to  apply;  and  slight  circumstances  or  mere  conjecture  that  the 
testator  meant  otherwise  should  not  induce  the  court  to  supersede 
it**  In  short,  estates,  legal  or  equitable,  which  are  given  by  the 
will,  should  be  regarded  as  vesting  immediately  upon  the  testator's 
death  unless  an  intention  to  the  contrary  is  manifest.^ 

But  if  the  will  sets  clearly  in  another  direction,  its  lead  must 
be  followed ;  as  where  the  gift  is  to  such  person  as  shall,  at  the 
specified  time  after  the  testator's  death,  be  the  ^'  heir  "  in  question ; 
or  where  it  is  in  favor  of  the  "  heir  "  of  some  person  already  dead 
at  the  date  of  the  will ;  or  where,  once  more,  to  take  the  instance  of 
a  gift  whose  object  is  wholly  contingent,  land  is  devised  to  such 
person  as  may  at  some  designated  period  after  the  devisor's  death 
be  his  "  heir  "  of  the  name  of  H.^ 


8.  Boydell  v.  Golightly,  14  Sim. 
327;  14  M.  &  W.  214;  Campbell  v. 
Rawdon,  18  N.  Y.  412;  Buzby's  Ap- 
peal, 61  Penn.  St.  114;  5  Jones  Eq. 
267;  Abbott  v.  Bradstreet,  3  Allen, 
587.  And  see  Dove  v.  Torr,  128  Mass. 
38,  for  a  marked  instance  where  the 
rule  was  applied  notwithstanding  the 
words,  "  who  may  then  be  entitled," 
etc.,  after  referring  to  a  daugliter's 
marriage  or  death.  See  also  26  S.  C. 
561,  2  S.  E.  412.  And  see  Welch  v. 
Brimmer,  169  Mass.  204,  47  N.  E. 
699;  Grimmer  v.  Friederich,  164  111. 
245,   45  N.   E.   498. 

9.  Scott  V.  West,  63  Wis.  529,  24 
N.  W.  161;  25  N.  W.  18,  113  111.  637; 
40  N.  J.  Eq.  443,  3  A.  260;  §  562; 
Spencer  v.  Adams,  97  N.  E.  743,  211 
Mass.  291;  Jenkins  v.  Bonnsal,  82  A. 
229,  116  Md.  629;  Smisson  Re,  82 
A.  614,  79  N.  J.  Eq.  233;  McFillin's 
Estate,  83  A.  620,  235  Penn.  175; 
119  P.  926,  161  Cal.  558;  134  N.  W. 
1018,  168  Mich.  642;  132  N.  W. 
738,    90   Neb.    43;    Wallace   v.   Diehl, 


95  N.  E.  646,  202  N.  Y.  156,  33  L.  R. 
A.  (N.  S. )  9  (usual  presumption 
overcome)  ;  94  N.  E.  980,  249  111.  606; 
135  S.  W.  296,  143  Ky.  66;  109  Me.. 
264,  83  A.  799;  80  A.  537,  231  Penn. 
232  (presumption  overcome)  ;  95  N. 
E.  985,  250  111.  616;  80  A.  43,  114 
Md.  580. 

Time  of  death  referred  to  may 
mean  death  in  testator's  lifetime.  98 
N.  E.  947,  254  111.  480.  And  see  147 
S.  W.  3,  148  Ky.  495. 

1.  Wrightson  v.  Macaulay,  14  M.  & 
W.  214;  2  Jarm.  89;  Donohue  v.  Mc- 
Nichol,  61  Penn.  St.  73;  93  Tenn. 
166,  23  S.  W.  138;  Sears  v.  Russell, 
8  Gray,  86;  Evans  v.  Godbold,  6  Rich, 
Eq.  26.  A.n  immediate  gift  to  the 
"  heirs  of  A,"  who  is  recognized  in 
the  will  as  living,  is  presumed  to  be  a 
gift  to  those  persons  who  would  be 
his  heirs  if  he  were  dead  at  the  time 
of  the  gift.  Hawkins  Wills,  92,. 
Sword's  note;  3  Sandf.  Ch.  67; 
Campbell  v.  Rawdon,  18  N.  Y.  417; 
2  Dev.  Eq.  517,   27  Am.  Dec.  238;   6 


729 


§    563  LAW    OF    WILLS.  [PAET    VI. 

A  devise  or  bequest  to  "next  of  kin  "  means  also  those  prima 
facie  who  prove  such  at  the  death  of  the  person  whose 
next  of  kin  are  spoken  of.^  Thus,  if  the  gift  be  to  A  for  life,  and 
after  his  death  to  the  testator's  next  of  kin,  the  person  to  take  as 
next  of  kin  should  be  ascertained  at  the  death  of  the  testator,  and 
not  at  the  death  of  A.  And  it  follows,  that  if  the  gift  be  to  A  for 
life,  and  after  his  decease  to  the  next  of  kin  of  the  testator,  and 
A  proves  the  sole  next  of  kin  when  the  testator  dies,  the  gift  will 
go  to  A  absolutely.^  Words  of  futurity  alone  do  not  exclude  this 
presumption  of  immediate  vesting,  nor  will  it  yield  to  doubtful 
conjecture;  ■*  and  while  the  clear  language  of  a  particular  will  may 
require  the  next  of  kin  to  be  ascertained  instead  at  the  period  of 
distribution,  courts  will  favor  no  surmise  of  this  kind.^  But 
rather  than  permit  a  gift  to  lapse  from  the  failure  of  objects  when 
the  will  takes  effect,  courts  have  sometimes  construed  a  bequest 
to  the  next  of  kin  of  one  who  predeceased  the  testator  as  referring 
to  next  of  kin  computed  at  the  testator's  own  death.® 

A  legacy,  by  the  general  familiar  rule  of  law,  lapses  if  the 
legatee  named  dies  before  the  testator.^  A  legacy  to  parties  joint- 
Ala.  36;  18  B.  Mon.  370;  Bailey  v.  3.  Holloway  v.  Holloway,  5  Ves. 
Patterson,  3  Rich.  Eq.  158.  Where  399;  4  K.  &  J.  498;  Ware  v.  Row- 
the  devise  is  to  A  for  life,  remainder       land,  2  Phill.  635. 

to  the  right  heirs  of  the  testator,  and  4,   16  Beav.  507;    17   Beav.   417;    3 

A  is  the  testator's  heir  at  law  at  his  East,  278;  Rayner  v.  Mowbray,  3 
death,    A    takes    the    property    abso-      Bro.  C.  C.  234. 

lutely.     Holloway  v.  Holloway,  5  Ves.  5.  Bullock  v.  Downes,  9  H.  L.  C.  1; 

399;  Hawkins  Wills,  100.  But  a  gift  White  v.  Springeth,  L.  R.  4  Ch.  300; 
to  the  testator's  "  surviving  heirs  "  cf.  Wharton  v.  Barker,  4  K.  &  J.  483 ; 
at  the  death  of  his  widow,  is  held  to  Hawkins  Wills,  101,  102.  But  cf. 
mean  those  who  should  at  her  death  the  case  of  an  annuity,  45  Ch.  D.  453. 
be    his    heirs.      Evans   v.    Godbold,    6  6.  Wharton  v.  Barker,  supra.     For 

Rich.  Eq.  26.  See  as  to  "  surviving,"  the  same  rule  in  a  substitutional  be- 
§  565.  quest      to      "  heirs,"      see      Gamboa's 

2.   Hawkins  Wills,   99;    Gundry  v.      Trusts,  4  K.  &  J.  756.     But  cf.  Rees 
Pinninger,   1   D,  M.   G.   502;    Bullock      Re,  44  Ch.  D.  484. 
v.  Downes,  9  H.  L.  C.  1 ;  5  Hare,  557 ;  "  Children,"  we  have  seen,  means 

Letchworth's    Appeal,    30    Ponn.    St.      prima  facie  those  existing  at  the  tes- 
175;   Brent  v.  Washington,  18  Gratt.      tator's  death.     Supra,   §   529. 
555.  7.  Schoul.  Exrs.  §  1467    (Vol.  II). 

730 


CHAP.    II.]        DETAILS   OF   TESTAMEJfTARY    CONSTRUCTIO^T.  §    5G4 

\y  might  have  this  same  disastrous  effect  by  the  predecease  of 
one  or  more  of  them.  But  where  an  entire  legacy  is  given  plainly 
to  a  class,  it  will  be  taken  by  the  individuals  who  compose  that 
class  on  the  death  of  the  testator.* 

§  564.  The  Same  Subject:  "Dying  without  issue,"  etc. 

The  influence  of  this  same  policy  in  favor  of  an  early  vesting 
is  perceived  in  the  modern  construction  of  such  phrase  as  ''  die 
without  issue."  By  the  old  rule,  as  applied  to  gifts  of  real  and 
persona]  estate  alike,  the  words  "  die  without  issue  "  meant  prima 
facie  an  indefinite  failure  of  issue;  that  is  to  say,  not  merely  at 
the  death  of  the  person  spoken  of,  but  at  any  time  afterwards.' 
Thus,  if  real  estate  were  devised  to  A,  with  a  limitation  over,  in 
the  event  of  his  dying  without  issue,  A  took  an  estate  tail  with 
remainder  over,  while  in  a  corresponding  bequest  of  chattels  the 
gift  over  was  void  for  remoteness,  and  A  took  the  absolute  in- 
terest.^ 

But  this  enlarged  construction  of  technical  words,  so  as  to  mean 
posterity,  must  often  have  defeated  a  testator's  actual  purpose; 
and  various  exceptions  came  accordingly  to  be  recognized.^ 

8.  Hall  V.  Smith,  61  N.  H.  144,  and  243 ;  1  K.  &  J.  156 ;  but  not  so  readily 
cases  cited.  in   a   bequest   of   chattels.      40   Penn. 

9.  8  Co.  86;   Beauclerk  v.  Dormer,       St.  18. 

2  Atk.  313 ;  Candy  v.  Campbell,  2  As  for  the  words,  "  die  without 
CI.  &  F.  421;  2  Jarm.  Wills,  497  et  leaving  issue,"  the  construction  varied 
seq.  and  Bigelow's  Am.  note;  Allen  according  to  the  kind  of  property 
V.  School  Fund,  102  Mass.  262;  given;  for  under  a  devise  of  realty  it 
Vaughan  v.  Dickes,  20  Penn.  St.  509 ;  meant  the  same  as  "  dying  without 
Arnold  v.  Brown,  7  R.  I.  188 ;  6  issue "  indefinitely,  but  under  a  be- 
Cold.  479 ;  Huxford  v.  Milligan,  50  quest  of  chattels  only  a  definite  failure, 
Md.  542;  4  Kent  Com.  280.  i.  e.,  without  issue  at  the  death  of 
1.  Hawkins  Wills,  206.  the  person  spoken  of.  Forth  v.  Chap- 
Other  expressions  were  treated  as  man,  1  P.  W.  663;  3  Paige,  30;  33 
equivalent  in  effect.  Thus,  "  die  with-  Md.  11,  3  Am.  Rep.  171;  Hawkins 
out  having  issue."  13  C.  B.  446;  Wills,  213,  Sword's  note,  and  cases 
Vaughan  v.  Dickes,  20  Penn.  St.  509.  cited.  Some  States  construe  it  as  a 
Or  "  die  without  children,"  so  far  at  definite  failure  of  issue  in  either  case, 
least  as  a  devise  of  land  was  con-  2.  One  admitted  exception  was 
cerned;   Hawkins  Wills,  206;   5  Bing.  where    the    context    of    the    will    dis- 

731 


564 


LAW    OF    WILLS. 


[PAET    VI. 


In  some  American  States  the  English  rule  was  either  rejected 
altogether,  or  else  allowed  within  narrow  limits  long  ago.^  And 
public  policy  settling  gradually  in  favor  of  the  more  constrained 
and  natural  meaning  of  the  phrase,  legislation,  both  in  England 
and  many  parts  of  the  United  States,  has  at  length  reversed 
this  presumption  altogether.  In  devises  and  bequests  of  real 
and  personal  estate,  the  expressions  "  die  without  issue,"  "  die 
without  having  (or  Meaving')  issue,"  and  any  other  equivalent 
words,  are  construed  at  the  present  day  to  mean  prima  facie  a 
failure  of  issue  at  the  death  of  the  person  whose  issue  are  spoken 
of,  and  not  an  indefinite  failure  of  issue.^ 

In  still  other  instances  courts  lean  against  raising  or  extend- 
ing a  contingency,  and  postponing  the  period  of  vesting.  Thus,  if 
personal  estate  be  given  to  the  children,  etc.,  of  A,  to  vest  in  them 
respectively  on  attaining  a  given  age  or  marriage,  a  gift  over  will 
be  construed,  if  possible,  so  as  not  to  defeat  their  vested  interests,^ 


closed  an  intention  on  the  testator's 
part  that  the  ultimate  devise  should 
take  eflfect  at  the  death  of  the  first 
taker;  where,  for  instance,  there  was 
a  gift  over  to  the  survivors  or  sur- 
vivor; or  the  gift  was  expressly  to 
take  effect  on  the  first  taker's  death. 
See  Hawkins  Wills,  206-212;  3  B.  & 
Aid.  546;  1  K.  &  J.  156;  18  N.  H. 
321 ;  2  My.  &  K.  441 ;   §  565. 

3.  Bullock  V.  Seymour,  33  Conn. 
290;  Parish  v.  Ferris,  6  Ohio  St.  563; 
14  B.  Mon.  663;  Benson  v.  Corbin, 
145  N.  Y.  351,  40  N.  E.  11;  92  Wis. 
619,  66  N.  W.  802;  10  Ga.  548. 
Slight  circumstances  to  exclude  op- 
eration of  the  rule  are  sometimes 
seized  upon.  Our  legislation  against 
estates  tail  (see  supra,  §  556)  works 
counter  to  the  presumption  of  the  old 
law.  For  the  American  cases  (which 
are  in  great  confusion,  each  juris- 
diction taking  its  own  course),  see 
passim,      Hawkins      Wills,      205-215, 


Sword's  note;   2  Jarm.  Wills,  497  et 
seq.,  Bigelow's  note. 

4.  Such  is  the  purport  of  Stat.  1 
Vict.  c.  626,  §  2  (1837).  And  see  the 
several  codes  of  New  York,  New  Jer- 
sey, Virginia,  South  Carolina,  Wis- 
consin, Missouri,  Minnesota,  and 
other  States  (several  of  them  prior 
in  date  to  the  English  Wills  Act), 
cited  in  Hawkins  Wills,  214,  Sword's 
note;  4  Kent  Com.  280.  See  also 
Phelps  V.  Phelps,  55  Conn.  359,  11 
A.  596;  Wills  v.  Wills,  85  Ky.  486, 
3  S.  W.  800;  135  P.  682,  90  Kan. 
545:  Walker's  Estate,  87  A.  281,  240 
Penn.  1;  78  S.  E.  988,  95  S.  C.  276; 
Weybriglit  v.  Powell,  86  Md.  573,  39 
A.  421;  145  Penn.  St.  540,  22  A.  972. 
5.  Maitland  v.  Chalie,  6  Mad.  250; 
Hawkins  Wills,  217.  "  Die  without 
leaving  issue"  is  not  presumably  to 
l)e  construed  "  die  without  having  had 
issue."  40  Ch.  D.  11.  "  Die  witliout 
lawful   issue "   confined    by    intent   of 

732 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY   CONSTRUCTION.  §    5G5 

nor  make  the  distribution  invalid  by  reason  of  a  perpetuity.^  But 
an  explicit  vesting,  by  the  terms  of  the  will  "  from  and  after  " 
some  event  later  than  the  testator's  death  operates  by  way  of  post- 
ponement.^ 

§  564a.  Prolonged  Restraint  upon  Alienation  not  favored. 

Presumption  favors  the  unfettering  of  an  estate  rather  tlian  a 
prolonged  restraint  upon  its  alienability.^* 

§  565.  Substitution,  Survivorship,  etc. 

Wherever  there  is  a  bequest,  whether  immediate  or  deferred,  to 
individuals,  it  is  a  rule  that,  be  the  legacy  immediate  or  by  way 
of  remainder,  a  gift  over  of  the  legacy  or  share  of  a  legatee  dying 
under  specified  circumstances,  shall  take  effect  if  the  event  hap- 
pens in  the  testator's  lifetime.*  Thus,  if  the  bequest  is  to  A,  but 
if  he  die  under  twenty-one,  to  B,  and  A  dies,  in  fact,  before  the 
testator,  the  gift  to  B  takes  effect.  Or  if  the  bequest  is  to  A  for 
life,  and  after  his  death  equally  between  B  and  C,  with  a  gift  over 
of  the  share  of  either  dying  in  the  lifetime  of  A,  and  B  or  C  dies 
in  the  lifetime  of  A,  and  while  the  testator  is  alive,  the  gift  over 
takes  effect.  For  the  argument  that  there  can  be  no  legacy  to  any 
one  until  the  will  speaks,  and  consequently  no  substitution,  can- 
not here  avail.  Upon  this  proposition  are  grafted  some  very  nice 
exceptions,  as  in  gifts  over  to  executors  and  administrators  of  the 
legatee,  which  are  not  immediate,  and  where  the  bequest  is  to  a 
class  whose  members  cannot  be  ascertained  during  the  testator's 

the  will  to  the  time  before  grant  of  111.    617     ("without    having    had    is- 

the    absolute    interest,    in    Lewin    v.  sue" ) . 

Killey,  13  App.  Cas.  783.  7a.  Herein  is  shown  a  favor  to  early 

6.  Andrews  v.  Rice,  53  Conn.  576,  vesting.  See  Southard  v.  Southard, 
5  A,  708;  Dean  v.  Mumford.  102  96  N.  E.  941,  210  Mass.  347;  Mif- 
Mich.  510,  61  N.  W.  7;    §  489.  flin's  Estate,  81  A.  129,  232  Penn.  25. 

7.  Jobson  Re,  44  Ch.  D.  154.  And  8.  Hawkins  Wills,  253;  Willing  v. 
see  150  Mass.  225,  5  L.  R.  A.  690,  22  Baine,  3  P.  Wms.  113;  Walker  v. 
N.  E.  65 ;  Tilton  v.  Tilton,  196  Mass.  Maine,  1  J.  &  W.  1 ;  Mowatt  v.  Car- 
562,  8  N.  E.  704  (set-oflf  of  the  pre-  row,  7  Paige,  336.  Even  though  the 
decessor's  debts)  ;  61  A.  641,  212  legatee  were  dead  when  the  will  was 
Penn.  91;  Conrad  v.  Quinn,  69  S.  E.  made,  the  rule  takes  effect.  16  Beav. 
952,   111  Va.   607;    92  N.   E.   562,  245  56. 

733 


§    565  LAW    OF    WILLS.  [pART    VI. 

life;  these  we  need  not  trace  out.^  The  nse  of  "or"  is  frequent 
to  denote  a  substituted  gift,  whether  of  personalty  or  of  real  and 
personal  estate  together;  the  period  of  substitution  referred  to 
being  usually  deemed  that  of  the  testator's  death.^  But  there  is 
no  authority  for  supposing  that  a  gift  to  A  or  B  is  prima  facie 
substitutional.^ 

If  a  bequest  is  to  one  person,  and  "  in  case  of  his  death  "  to 
another,  the  gift  over  takes  effect  prima  facie  only  in  the  event 
of  the  prior  legatee's  death  before  the  period  of  payment  or  dis- 
tribution ;  ^  agreeably  to  the  rule  which  favors  an  early  vesting 
and  the  prompt  settlement  of  the  decedent's  estate.  Moreover,  a 
gift  to  A,  and,  in  case  of  his  death,  to  B,  is,  if  possible,  narrowed 
so  as  to  give  A  the  aboolute  interest,  unless  he  dies  before  the  tes- 
tator.* 

As  to  gifts  made  to  persons  who  shall  be  surviving  at  some  period 
not  clearly  specified  in  the  will,  the  inclination  of  the  courts  was, 
formerly,  to  refer  the  survivorship  prima  facie  to  the  period  of 
the  testator's  own  death.^  Such  is  still  the  prevailing  preference 
in  construction  where  real  estate  is  devised ;  ^  and  it  holds  in  many 
of  the  United  States,  irrespective  of  the  kind  of  property  given ;  ^ 

9.  See  Hawkins  Wills,  245-254,  Home  v.  Pillans,  2  M.  &  K.  15;  Haw- 
Sword's     note,     where     various     pre-  kins  Wills,  254. 

cedents,     somewhat     discordant,     are  4.  Home  v.  Pillans,  2  M.  &  K.  23; 

brought    together;    the    context    and  Stevenson  v.  Fox,  125  Penn.  St.  568, 

general    scope    of    the    will    resolving  17    A.    480,    11    Am.    St.    Rep.    922; 

all  such  disputes  at  the  last.    And  see  Webb  v.   Lines,   57  Conn.   154,   17   A. 

2    Jarm.    Wills,    497,    154,    Bigelow's  90;    156  Penn.  St.   197,  27  A.  375. 

note;  lb,  721  et  seq.  5.  Hawkins  Wills,  260. 

1.  Wingfield  v.  Wingfield,  9  Ch.  D.  6.  Doe  v.  Priggs,  8  B.  &  Cr.  231;  2 
G58;  25  Ch.  D.  212;  O'Rourke  v.  De  G.  J.  &  S.  437;  Hawkins  Wills, 
Beard,  151  Mass  9,  23  N.  E.  576.  262.  But  see  Wigram,  V.  C,  in 
That  "  or  "  is  frequently  read  "  and  "  Buckle  v.  Fawcett,  opposing  any  dis- 
out  of  respect  to  a  testator's  intent,  tinction  between  real  and  personal 
see  §  477.  estate  on  this  point.     A  devise  to  a 

2.  Dolmar  Re,  (1897)  2  Ch.  163.  class  takes  effect  prima /acie  in  favor 
Gift  held  here  to  be  alternative  in-  of  those  who  constitute  the  class  at 
Btoad.  the    testator's    death.      2    Jarm.    154, 

3.  Ommaney  v.  Bcvan,  18  Vcs.  291;  and   Bigelow's  note;    supra,   §   529. 

7.  Moore  v.  Lyons,  25  Wend.  119; 

734 


CHAP.    II.]       DETAILS   OF   TESTAMENTAKY   CONSTRUCTION. 


565 


but  late  English  precedents  refer  words  of  survivorship  prima 
facie  to  the  period  of  payment  and  distribution  instead,  where 
personal  estate  is  bequeathed  to  certain  persons  by  name,  or  to  a 
class  of  persons  as  tenants  in  common,  and  the  survivors  of  them.^ 
Into  the  long-drawn  controversy  over  this  change  of  construction 
we  shrink  from  entering.''  Words  of  survivorship,  may,  agree- 
ably to  the  true  intent  of  the  will  in  its  full  scope,  refer  to  the 
death  of  some  party  subsequent  to  the  testator's  own  death.^  But 
yet,  after  all,  the  better  opinion  must  be,  that  the  question  to  what 
period  survivorship  is  to  relate  depends  rather  upon  the  apparent 
intention  of  the  testator  in  each  case,  than  upon  any  rigid  rule,  or 
any  technical  words.^ 


Ross  V.  Drake,  27  Penn.  St.  373; 
Hawkins  Wills,  261,  and  Sword's 
note;  Martin  v.  Kirby,  11  Gratt.  67; 
5  Cusli.  153;  2  Jarm.  Wills,  154,  and 
Bigelow's  note;  Davis  v.  Davis,  118 
N.  Y.  411. 

8.  Cripps  V.  Wolcott,  4  Mad.  11; 
Hawkins  Wills,  261.  The  authority 
of  Cripps  V.  Walcott  is  rejected  in 
some  American  cases,  like  Moore  v. 
Lyons  and  Ross  v.  Drake,  supra. 
And  see  2  Jarm.  Wills,   728-751. 

In  Denney  v.  Kettell,  135  Mass. 
138,  where  a  fund  consisting  of  real 
and  personal  property  was  left  in 
trust,  to  go  after  the  payment  of  cer- 
tain legacies  and  the  termination  of 
certain  life  estates,  in  equal  portions 
to  the  testator's  "  surviving  nepliews 
and  nieces,"  the  court  preferred  to 
reckon  at  the  period  when  the  time 
for  final  distribution  came,  rather 
than  at  the  date  of  the  testator.  And 
see  137  N.  Y.  428,  33  N.  E.  482;  49 
N.  J.  Eq.  44,  23  A.  497. 

9.  Mr.  Jarman,  after  a  patient  and 
laborious  examination  of  the  English 
precedents  which  have  thus  turned 
the  course,  concludes  his  chapter,  like 


its  commencement  with  a  caution. 
"  This  word  '  survivor,'  "  said  Wood, 
V.  C,  "  is  certainly  one  that  ought  to 
be  avoided  by  any  person  who  is  not 
a  consummate  master  of  the  art  of 
conveyancing,  for  I  suppose  no  word 
has  occasioned  more  difficulty."  33 
L.  J.  Ch.  532,  quoted  in  2  Jarm.  Wills, 
751. 

Limitations  upon  which  a  devise  is 
to  take  effect  by  survivorship  rarely 
refer  to  death  while  the  testator  is 
alive;  but  the  persons  who  are  to  take 
as  survivors  are  meant  to  survive  a 
death  which  happens  at  or  after  the 
testator's  own  decease.  Crane  v. 
Cowell,  2  Curt.  178. 

1.  §  563.  As  where  the  word  "  sur- 
viving "  would  otherwise  be  unneces- 
sary and  meaningless.  148  Mass. 
576;  126  Penn.  St.  562;  Roundtree  v. 
Roundtree,  26  S.  C.  450.  And  see 
Bowman  Re,  41  Ch.  D.  525;  Pendle- 
ton V.  Kinney,  65  Conn.  222. 

2.  Denny  v.  Kettell,  135  Mass.  138; 
45  N.  J.  Eq.  426;  114  Cal.  186  (stat- 
ute) ;  Denton  Re,  137  N.  Y.  428;  118 
P.  116,  160  Cal.  743;  81  A.  667,  84 
Conn.   684.     See  also  46  A.  497,   195 


735 


§  565a  LAW  OF  WILLS.  [PAKT  VI. 

Where  successive  limitations  of  personalty  are  made  in  absolute 
favor,  the  first  in  line  of  those  who  survive  takes  absolutely;  for 
the  effect  of  the  failure  of  an  earlier  gift  is  to  accelerate,  not  to 
destroy,  the  later  gift,  and  the  doctrine  of  repugnancy  does  not 
apply.^  Wherever  a  bequest  is  made  personally  to  one  as  survivor 
of  the  testator  it  cannot  take  effect  unless  survivorship  as  a  fact 
may  be  shown  or  legally  presumed.* 


§  565a.  Power  of  Disposition  by  first  Beneficiary. 

It  has  been  seen  that  in  various  instances  a  testator  confers  some 
power  of  appointment  or  disposition  upon  his  life  beneficiary  or 
the  first  taker  with  a  temporary  term  of  enjoyment,  whose  exer- 
cise will  in  effect  exclude  or  narrow  down  all  beneficial  enjoyment 
in  the  expectant  legatees  or  devisees  by  way  of  remainder.  Such 
a  power  may  be  exercised  as  legally  conferred ;  and  the  true  in- 
tent of  the  will  determines  the  method  and  extent  of  such  exercise. 
When  such  a  power  is  expressly  conferred  for  specified  purposes 
only  or  is  specifically  limited,  there  is  no  right  in  such  first  taker 
to  dispose  differently.^  And  there  may  be  a  life  or  temporary  estate 
given  to  the  first  taker,  with  only  a  limited  power  of  disposition 
•and  a  gift  over  of  whatever  may  remain  undisposed  of  at  the  ex- 
piration of  the  first  taker's  estate.® 

Penn.  366:   57  A.  167,  76  Conn.  522;  at  the  same  moment.     Willbor  Re,  26 

84  N.  W.  896,  108  Wis.  626;  77  N.  E.  N.  J.  26. 

507,  190  Mass.  482;   Smith  v.  Smith,  5.   Herring   v.    Williams,    69    S.    E. 

72  S.  E.   119,  112  Va.  617;    93   iST.   E.  140,  153  N.  C.  231. 

802,  207  Mass.  372;  94  N.  E.  845,  208  6.   Allen   v.   Hunt,   100  N.   E.   553, 

Mass.   478    (substitution);    68    S.    E.  213  Mass.  276  (widow's  power  of  dis- 

728,  134  Ga.  813;   69  S.  E.  1115,  135  posal    for    her    comfort    and    support 

Ga.    567.  during  life);    141  N.   Y.   S.   460;    154 

3.  Lowman   Re,    (1895)    2   Ch.   348.  S.  W.   1103,  153  Ky.  195;   85  A.  815, 

4.  Wliero  the  wills  of  each  of  three  81  N.  J.  Eq.  103;  102  N.  E.  293, 
sisters  bequeathed  to  the  other  sisters  259  111.  262;  86  A.  270,  238  Penn. 
or  her  survivor,  and  all  perislied  in  343;  123  P.  247,  162  Cal.  433;  144 
tlie  same  calamity,  with  no  proof  that  S.  W.  770,  239  Mo.  490;  Lord  v.  Pear- 
one  lived  longer  than  another,  tlieir  son,  83  A.  1102,  108  Me.  565  (power 
•estates  were  settled  as  though  all  died  to   expend   all   one   needs   or   wislies, 

736 


CHAP.    II.]       DETAILS   OF   TESTAMENTARY    CONSTKUCTION. 


',Cj(j 


On  the  other  hand  it  is  well  settled  that  where  a  general  estate 
is  given  with  absolute  control  or  full  power  of  disposition,  express 
or  implied  in  the  first  beneficiary  or  taker,  such  beneficiary  takes 
the  fee  or  full  title  absolutely,  to  the  exclusion  of  all  others.^ 


§  566.  Interest,  whether  by  Way  of  Joint  Tenancy  or  Co- 
Tenancy;  Husband  and  Wife;  etc. 
It  has  long  been  the  rule  in  England,  notwithstanding  a  former 
leaning  of  the  courts  against  any  joint  tenancy  in  legacies  of  chat- 
tels, that  either  a  devise  or  a  bequest  to  several  persons  by  name, 
or  to  a  class,  shall  per  se  be  presumed  to  create  a  joint  tenancy 
among  them.^  This  rule  applies  to  children,  issue,  next  of  kin, 
and  other  classes  of  beneficiaries  commonly  found  in  a  will ;  but 
not  where  the  reference  is  to  statutes  of  descent  and  distribution, 
•and  the  right  per  stirpes  enters  plainly  as  an  element  of  the  gift.^ 


etc. ) .  The  limited  power  given  must 
not  be  exceeded,  and  a  reasonable  and 
not  arbitrary  discretion  is  favored. 
And  yet  a  testator  can  create  an  ar- 
bitrary power.  87  A.  195,  35  R.  I. 
395. 

A  power  to  "  dispose  of "  certain 
property  held  to  include  the  power 
to  mortgage.  95  S.  W.  875,  197  Mo. 
550.  As  to  a  naked  power  of  dispo- 
sition without  a  beneficial  interest, 
see  70  N.  E.  368,  162  Ind.  353.  And 
see  Hamilton  v.  Hamilton,  128  N.  W. 
380,  149  Iowa  127  (power  to  sell, 
transfer  and  dispose  of). 

6a.  Barnett  v.  Barnett,  83  A.  IGO, 
117  Mo.  265;  Crutchfield  v.  GrPen.  74 
S.  E.  166,  113  Va.  232.  A  limitation 
over  by  way  of  remainder  is  void  in 
such  a  case.  Williams  v.  Green.  92 
N.  E.  960,  246  111.  548.  And  abso- 
lute restriction  upon  a  fee  simple 
would  violate  the  law  of  perpet- 
uities. Manierre  v.  Welling,  78  A. 
507,   32   R.   I.    104. 

47  T: 


Recent  cases  under  this  head  lira 
very  numerous,  and  need  not  be  col- 
lated further.  The  true  intent  of  the 
will  as  to  bequests  absolute  or  for 
life  is  considered  in  §§  557-559  supra. 

7.  Schoul.  Pers.  Prop.  §  157;  Haw- 
kins Wills,  111;  5  T.  R.  562;  Bullock 
V.  Downes,  9  H.  L.  C.  1 ;  Campbell  v. 
Campbell,  4  Bro.  15;  2  Kent  Com. 
351;  Westcott  v.  Cady,  5  Johns.  Ch. 
334,  9  Am.  Dec.  306;  2  Jarm.  Wills, 
251-266;  Atcheson  v.  Atcheson,  11 
Beav.  485. 

8.  Bullock  V.  Downes,  supra.  Al- 
though the  interests  of  members  of 
tlie  class  vest  at  different  times,  the 
rule  applies.  Hawkins  Wills,  111:  2 
Jarm.  255;  11  Hare,  196.  It  also 
applies  to  a  gift  to  children  by  way  of 
remainder  after  a  prior  life  estate. 
2  Jarm.  255;  1  Ch.  D.  460.  But  not 
where  some  have  a  vested  and  others 
a  contingent  interest.  2  Jarm.  256; 
Hawkins  Wills,  111;   1  D.  F.  &  J.  74. 


§    566  LAW    OF    WILLS.  [pART    VT. 

Words  which  import  distinctness  of  interest  or  equal  division 
among  the  objects  of  the  gift  will  also  exclude  the  rule;  as  for 
example,  in  a  devise  or  legacy  to  several  or  to  a  class  "  equally," 
or  "  between,"  or  "  among  "  them,  to  persons  respectively ;  ^  and 
wherever  the  intent  is  manifest  to  create  a  tenancy  in  common,  or 
co-ownership,  that  intent  must  prevail/  We  may  add  that,  in  many 
of  the  United  States,  joint  tenancy,  with  its  peculiar  incident  of 
survivorship,  is  now  cut  do'wn  or  abolished,  though  with  reference 
more  especially  to  real  estate,  and  so  as  to  leave  the  rule  still  in 
force  where  legacies  and  personalty  are  to  be  construed ;  ^  and  in 
England  the  later  cases  appear  to  lean  in  favor  of  a  tenancy  in 
common.^  As  for  a  devise  of  real  property  more  particularly,  the 
general  rule  of  construction  favors  the  idea  of  tenancy  in  common, 
rather  than  joint  tenancy;  though  this  rule  yields  to  a  testator's 
obvious  intent.* 

The  point  of  distinction  here  to  be  noted  is,  that,  in  case  of  a 
joint  tenancy,  the  failure  of  a  devise  or  bequest  as  to  any  one  of 
the  parties  named  will  carry  the  gift  to  the  other  or  others  by 
force  of  survivorship,  that  striking  incident  of  the  relation ;  but 
when,  on  the  other  hand,  the  gift  is  to  tenants  in  common,  the 
death  of  one  of  them  before  the  testator,  or  the  failure  of  his  share 
from  some  other  cause,  will  produce  a  lapse  with  the  usual  result  in 
favor  of  heir,  next  of  kin,  or  residuary  devisee  or  legatee,  as  the 
case  may  be.^    If  the  gift  vests  at  the  testator's  death,  as  where  the 

9.   Ealcs  V.   Cardigan,  9   Sim.   3S4;  253,    45   N.  E.   687,  and  cases  cited; 

Westcott  V.   Cady,  supra;   Martin   v.  Moflfett  v.  Elmendorf,   152  N.  Y.  475, 

Smith,  5  Binney,  18;  Hawkins  Wills,  46  N.  E.  845,  57  Am.  Rep.  529.     For 

112,  and  Sword's  note;  2  Jarm.  Wills,  a    joint   tenancy    clearly   created    see 

258,   and   Bigelow's   note;    Walker   v.  65  Conn.  222,  32  A.  331. 
Dewing,  8  Pick.  520;   3  Desaus.  288.  5.    2    Jarm.    Wills,    265;    supra,    § 

1.  See  supra,  §§  538-540.  545;    1   Atk.  494;    119  Mass.   509;   L. 

2.  Hawkins  Wills,  111,  and  Sword's  E.  10  Ch.  360. 

note;  4  Kent  Com.  361,  362.  The    latest    cases    favor    largely    a 

3.  2  Jarm.  258.  Tenancy  in  com-  tenancj'  in  common  on  construction, 
mon  construed  in  lands  in  117  N.  C.  lb.;  75  P.  53,  141  Cal.  432  (code)  ; 
8,  23  S.  E.  37,  and  cases  cited.  67  N.  E.  1084,  175  N.  Y.  519   (code)  ; 

4.  Frost  V.  Courtis,  167  Mass.  251,  49   A.  699,  23  R.  I.   180;    45  A.   354, 

738 


CHAP.    II.]        DETAILS    OF   TESTAMENTARY    CONSTRUCTION.        §    566a 

gift  is  to  objects  as  a  class,  each  survivor  takes  his  share,  and  the 
survivorship  incident  becomes  exhausted.® 

Another  rule  in  this  connection  which  yields  as  usual  where  the 
context  requires  it,  is  that  where  a  devise  or  bequest  is  expressed 
to  a  husband  and  wife  and  another  or  others,  it  will  be  presumed 
that  husband  and  wife  were  intended  to  take  a  single  share,  as  one 
person,  and  not  a  share  each ;  and  this  whether  such  gift  was 
created  by  way  of  joint  tenancy  or  a  tenancy  in  common.^  The 
source  of  this  maxim  may,  perhaps,  be  found  in  the  doctrine  of 
coverture,  which  is  peculiar  to  our  common  law.^  And  tlie  maxim 
itself  yields  to  an  apparent  intention  of  the  testator  to  the  con- 
trary, or  so  as  to  give  husband  and  wife  separate  shares.® 

On  the  whole,  however,  there  may  be  a  joint  ownership  of  per- 
sonalty analogous  to  a  joint  estate  in  land  and  with  similar  rules 
applicable.^ 

§  566a.  Gifts  to  Servants,  Strangers,  etc.;  Miscellaneous  Points. 
A  devise  or  legacy  is  not  unfrequently  given  to  a  servant  or  ser- 
vants of  the  testator.  Where  a  gift  is  made  to  such  as  may  answer 
that  description,  and  without  identifying  particular  persons  as  the 
objects  of  one's  bounty,  courts  incline  to  limit  its  benefit  if  not 

72   Conn.   595,   45   A.   354;    71   N.   E.  and  E  his  wife"  and  the  context  re- 

981,  186  Mass.  444;  60  N.  E.  458;  77  versed  the  rule  of  the  text. 

A.    1090;    Neal   v.    Hamilton   Co.,    73  8.  5  App.  Cas.  123.     Rule  still  ap- 

S.  E.  971,   70  W.  Va.  250    (expressly  plied    notwithstanding    the     married 

limited  to  survivor)  ;  Nightingale  Re,  women's  acts.     39  Ch.  D.  148. 

(1909)   1  Ch.  385;  86  A.  444,  81  N.  J.  A  gift  to  a  legatee's  "wife"  does 

Eq.  338 ;  78  S.  E.  1067,  140  Ga.  430.  not  pass  to  a  woman  from  whom  the 

6.  Ibid.  legatee  had  been  divorced  before  the 

7.  Co.  Lit.  291;  Wylde  Re,  2  D.  M.  testator's  death.  40  Ch.  D.  30;  Bell 
&  G.  724;  Hawkins  Wills,  115;  2  v.  Smalley,  45  N.  J.  Eq.  478,  IS  A. 
Jarm.  Wills,  252.  American  statutes  70.  As  to  including  a  second  hus- 
affect  this  construction  in  various  in-  band,  see  42  Ch.  D.  54. 

stances.         Hawkins       Wills,        111,  9.   As  in  an  appropriate  residuary 

Sword's  note.    And  see  Warrington  v.      clause.    Dixon  Re,  42  Ch.  D.  306.   And 
Warrington,    2   Hare,    54,    where   the      see    (1892)    W.  N.  88,   132. 
term  of  expression  "  my  nephew  W.  1.  Overheiser  v.  Lackey,  100  N.  E. 

738,   207  N.  Y.  229. 

739 


566a 


LAW  OF  WILLS. 


[part  VI. 


to  strict  "  household  "  ser\'ants,  at  least  to  such  as  spend  their  whole 
time  in  the  master's  employ;  not  extending  the  gift,  in  its  scope, 
to  persons  who  come  back  and  forth  for  casual  employment  and 
work  also  for  others." 

Where  a  gift  is  made  to  a  stranger  in  blood,  it  may  be  presumed 
that  no  right  of  representation  as  to  heirs  of  that  stranger  is  in- 
tended; and  that  where  the  residue  of  an  estate  is  given,  not  to  a 
class,  but  to  two  persons  by  name,  one  of  whom  is  a  stranger  in 
blood,  the  death  of  that  stranger  before  the  testator  causes  his 
share  to  lapse,  regardless  of  his  own  kindred.^ 


2.  Metcalf  v.  Sweeney,  17  R.  I. 
213,  33  Am.  St.  Rep.  864,  21  A.  36-i; 
Tovvnshend  v.  Windham,  2  Vern. 
596;  9  Jur.  936.  See  further,  Shar- 
land  Re.  (1896)  1  Ch.  517,  (1905) 
2  Ch.  1.  See  also  Sheffield  Re, 
(1911)  2  Ch.  267  (in-door  and  out- 
door servants  who  have  yearly  or 
weekly  wages)  ;  [1914]  W.  N.  89,  90; 
Abbott  V.  Lewis,  88  A.  98,  77  N.  H. 
94. 

For  nephews  defined  "  who  may 
read  law,"  see  Benson's  Estate,  169 
Penn.  St.  602,  32  A.  654. 

3.  Horton  v.  Earle,  162  Mass.  448, 
38  N.  E.  1135.  Appropriate  words 
in  the  will  may,  of  course,  rebut  such 
a  presumption. 

Where  one's  will  makes  another 
(not  the  heir)    the  "sole  controller" 


See  further,  68  S.  E.  929,  153  N. 
C.  49  ("life  right,"  "dower  of  use," 
etc.)  ;  137  N.  W.  979,  91  Neb.  746 
("descend");  Townsend  v.  Savings 
Bank,  80  A.  226,  76  N.  H.  573  (sole 
legatee  and  executrix,  dying  before 
qualifying)  ;  Henderson  v.  Henderson, 
77  A.  348,  77  N.  J.  Eq.  317  ("there 
are  no  debts ") . 

A  testator  is  presumed  to  assert 
that  he  has  title  to  the  property  he 
undertakes  to  devise,  but  the  expres- 
sion of  his  will  may  repel  such  pre- 
sumption. Cummins  v.  Riordon,  115 
P.  568,  84  Kans.  791;  Tyler  v. 
Wright,  130  N.  W.  205,  164  Mich. 
606.  And  see  68  S.  E.  999,  111  Va. 
325    (part  interest). 

Among  words  specially  construed 
as  to  meaning,   see  74   S.   E.   372,   91 


of  all  his  property,  this  is  presumed      S.  C.  167   ("revoke")  ;  81  A.  784,  108 


to  mean  "  sole  executor  "  only. 
Wolffe  V.  Loeb,  98  Ala.  426,  13  So. 
744. 

As  to  a  church  whose  identity  be- 
came lost  in  a  consolidation,  see  57 
A.  S60,  25  N.  I.  628,  105  Am.  St.  Rep. 
904. 


Me.  443  ("reservation");  72  S.  E. 
545,  90  S.  C.  20  (shall  "take  care 
of");  147  S.  W.  431,  148  Ky.  711 
(date  of  a  prior  will);  190  F.  499, 
111  C.  C.  A.  331    ("go  to"). 


740 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    567 

CHAPTER  III. 

EXTRINSIC    EVIDENCE    TO    AID    CONSTRUCTION. 

§  567.  Admission  of  Extrinsic  Evidence  in  General;  Rule  ap- 
plied to  Wills. 
We  are  now  to  consider  how  far  extrinsic  evidence  is  admissible 
to  aid  in  the  construction  and  interpretation  of  wills.  In  modem 
times  when  the  codes  and  policy  of  England  and  the  United  States 
harmonize  in  requiring  not  only  that  wills — whatever  the  descrip- 
tion of  property  to  which  they  relate — shall  with  trivial  exceptions, 
be  expressed  in  writing,  but  embodied  in  some  instrument  which 
has  been  signed  and  witnessed  with  due  solemnity,  we  may  well 
expect  to  find  parol  testimony  of  what  the  maker  really  intended, 
and,  indeed,  all  proof  dehors  the  testamentary  paper  or  papers, 
more  carefully  shut  out  than  formerly.  The  maxim  hardens  into 
a  truism,  that  the  will  must  speak  for  itself,  that  the  testament 
shall  afford  its  own  testimony.  Hence,  he  modem  interpretation 
of  wills  becomes  subject  to  rules  much  the  same  as  apply  to  con- 
tracts; and  eminent  jurists  assert  that  there  is  no  material  differ- 
ence of  principle  between  the  two  classes  of  writings,  except  what 
naturally  arises  from  the  different  circumstances  of  the  parties.^ 

Yet  in  those  differing  circumstances  appears  no  little  ground 
of  variance;  for  here,  instead  of  parties  who  balance  their  inter- 
pretation together  of  what  was  mutually  intended,  and  may  en- 
large, qualify,  explain,  or  rescind  provisions  at  pleasure,  changing 
the  original  document  and  adding  new  writings  if  they  so  incline, 
we  find  a  formal  instrument  or  instruments  of  disposition  left  as 
a  sort  of  chart  to  all  posterity,  whose  operation  has  no  element  of 
mutuality,  whose  maker  cannot  aid  a  court  to  discern  his  meaning, 
whose  language  and  effect,  however  harsh,  must  remain  immutable 
and  unyielding  to  the  end  of  time.  Interpretation  consequently  is 
thrown  upon  the  judicial  tribunal  itself,  which  must  hold  the  scales 

1.  1  Greenl.  Ev.  §  287.    See  Chamberlayne  Evid.  §§  506,  516. 

741 


'§    568  LAW    OF    WILLS.  [PAET    VI. 

Tjetween  the  rival  interests  which  this  irrevocable  disposition  has 
stirred  up,  and  discharge  a  sacred  duty  both  to  the  dead  and  the 
family,  to  survivors  that  one  leaves  behind.  In  order  to  dis- 
charge these  delicate  functions  safely  and  honorably,  the  court  seeks 
therefore  to  put  itself  in  the  testator's  place,  and  read,  through  his 
own  surroundings,  the  disposition  of  property  as  he  made  it;  to 
discover,  not  as  in  contracts,  the  meeting  of  two  minds,  but  the 
process  worked  out  and  expressed  by  one  individual  mind  and  one 
will.  It  repels,  however,  on  the  one  hand,  the  perilous  discretion 
of  framing  another  will,  something  different  from  that  presented, 
Vv'hether  better  or  worse;  on  the  other,  it  shuns  the  equal  danger 
of  ignoring  or  perverting  the  rights  of  those  interested  under  the 
will  by  treating  the  instrument  too  much  as  though  it  were  some 
generic  thing,  a  document,  a  product,  without  an  individual 
author.  On  the  whole,  the  court  puts  the  will,  if  possible, 
as  the  testator  meant  it  or  at  least  clearly  enough  expressed  it,  and 
there  rests.  Hence  this  tender  indulgence  to  the  testator's  wishes  al- 
ready commented  upon,  this  straining  to  discern,  through  the  mists 
of  careless,  untechnical,  and  ignorant  expression,  that  pole-star  of 
intention  by  which  construction  must  be  guided.  And  hence,  too, 
as  we  shall  now  endeavor  to  show,  the  judicial  inclination,  when- 
ever that  intention  remains  obscured  in  spite  of  rule  or  presump- 
tion brought  to  bear  upon  the  instrument  by  way  of  interpreting 
it,  is  to  borrow  light  from  extrinsic  circumstances  and  illumine  its 
meaning,  so  far  as  may  be  needful  and  appropriate. 

§  568.  Extrinsic  Evidence  to  control,  contradict,  etc.,  Inadmis- 
sibler. 

We  may  lay  it  down,  tlien,  at  the  outset,  that  where  the  lan- 
guage employed  in  the  will  clear  and  of  well-defined  force  and 
meaning,  extrinsic  evidence  of  what  was  intended  in  fact  cannot 
be  adduced  to  qualify,  explain,  enlarge,  or  contradict  this  language, 
but  the  will  must  stand  as  it  was  written.^    Courts,  we  have  seen, 

2.  2  Stra.  1261;   Goas  v.  I^rd  Xu-      409;  Wigram  Wills.  5;  Chamberlayne 
gent,  5  B.  &  Ad.  64;   1  Jarm.  Wills,      Ev.   §§   516,  2654;    Chambers  v.   Min- 

742 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    568 

are  well  enough  disposed  to  correct  the  letter  of  such  an  instru- 
ment by  its  spirit ;  to  overlook  verbal  errors  and  infelicities  of  ex- 
pression, transpose  phrases,  and  mould  the  language  somewhat  to 
meet  the  testator's  obvious  meaning.^  But  to  go  a  step  beyond 
this  and  insert  or  substitute  in  effect  that  which  the  will  never 
contained,  or  to  vary  or  contradict  its  plain  provisions  and  unam- 
biguous language,  our  courts  have  stubbornly  refused,  and  decline, 
to  their  honor,  the  insidious  temptation  of  shaping  men's  wills  for 
them.^  Far  safer  is  it,  as  they  deem  it,  to  adhere  to  general  limits 
prescribed  by  general  rules.^  And  if  written  testimony  dehors  the 
will  should  be  rejected  from  this  point  of  view,  much  more  should 
be  that  looser  and  less  credible  parol  proof  which  is  purely  oral. 

To  cite  a  few  examples.  A  very  early  case  discarded  letters  and 
oral  declarations  of  a  testator  to  prove  that  he  meant  to  include  a 
reversion  in  words  whose  formal  expression  would  not  bear  that 
construction.^  Another  and  a  leading  case  refused  proof  from  the 
person  who  drew  the  will,  that  a  release  of  debt  due  from  one  of 
the  residuary  legatees  should  have  been  inserted.^  And,  generally 
speaking,  words  or  a  provision  inadvertently  omitted  from  a  wall 
cannot  be  supplied  in  construction ;  ^  though  what  is  superfluous  by 

chin,   4   Ves.    675;    Canfield   v.   Bost-  struction   of   wills   and   other    instru- 

wick,  21  Conn.  550;  Brown  v.  Salton-  ments.    It  is  expedient  that  such  rules 

stall,  3  Met.  426;   141  N.  Y.  S.  180.  should  be   held   sacred;    because   they 

3.  Supra,  §  477.  withdraw   the   decision   from   the  dis- 

4.  "  For  it  would  have  been  of  lit-  cretion  of  the  individual  judg?,  and 
tie  avail,"  as  Mr.  Jarman  forcibly  ob-  prevent  him  from  pursuing  his  own 
serves,  "  to  require  that  a  will  ab  views  of  each  particular  case.  And 
origine  should  be  in  writing,  or  to  there  is  less  inconvenience  in  the 
fence  a  testator  round  with  a  guard  hardship  which  may  sometimes  be  oc- 
of  attesting  witnesses,  if,  when  the  casioned  by  a  strict  adherence  to  the 
written  ini?trument  failed  to  make  a  rule,  than  in  the  confusion  which 
full  and  explicit  disclosure  of.  his  must  follow  on  departing  from  it." 
scheme  of  disposition,  its  deficiencies  Tindal,  C.  J.,  in  7  Bing.  279. 
might  be  supplied,  or  its  inaccura-  6.  Strode  v.  Lady  Falkland,  3  Ch, 
cies        corrected,        from        extrinsic  Rep.  98. 

sources."     1  Jarm.  Wills,  409.  7.  Brown   v.    Selwin,    Cas.   t.    Talb. 

5.  "  I  agree  in  the  necessity  of  ad-      240. 

hering   to   general    rules    in   the   con-  8.  Supra,  §§  216-218. 

743 


§    569  LAW    or    "WILLS.  [pAET    VI. 

way  of  error  may  perhaps  be  expunged  when  the  bill  is  probated, 
so  that  the  instriunent  may  stand  as  what  the  testator  supposed 
himself  executing.^  ISTor  are  plain  words  to  be  read  differently  or 
changed  upon  any  plea,  however  capable  of  proof  aliunde,  that 
the  Testator  meant  different  words ;  especially  if  the  effect  would 
be  to  alter  the  disposition  from  that  expressed  in  the  instrument: 
as,  for  example,  where  it  is  claimed  that  a  legacy  of  $500  was 
wrongly  written  for  $5000,  or  that  all  the  rest  "  of  my  estate  pei^ 
sonal  "  is  said  to  have  intended  "  of  my  estate  real  and  personal ;  "  ^ 
while  on  the  other  hand  a  clerical  error  apparent  from  the  con- 
text might  be  corrected  in  construction  without  the  need  of  ex- 
ternal proof  at  all.^ 


§  569.  The  Same  Subject. 

In  short,  extrinsic  evidence  is  incompetent  to  show  the  intention 
of  a  testator  where  the  will  speaks  for  itself  with  a  clear  and  un- 
ambigTious  meaning ;  ^  nor  can  it  be  received  to  show  a  different 
intention  from  that  which  the  instrument  discloses ;  nor  can  it 
enlarge  or  diminish  by  construction  the  disposition  as  written  out 
and  executed,^  or  supply  any  omissions  or  defects  which  may  have 
occurred  through  mistake  or  inadvertence.  Were  it  possible  tliat 
alterations  or  insertions  had  been  made  in  the  original  instrument 

9.  Supra,  §§  219,  220.  of  an  advancement  to  be  brought  into 

1.  Supra,  §  527;  Graham  v.  Gra-  hotchpot.  Wood  Re,  32  Ch.  D.  517. 
ham,  23  \V.  Va.  36,  48  Am.  Rep.  364.  Evidence  that  the  testator  said,  be- 
And  see  Newburgh  v.  Xewburgh,  5  fore  executing  his  will,  that  he  in- 
Mad.  364;  Defreese  v.  Lake,  109  tended  to  give  certain  property  to  the 
Mich.  415,  63  Am.  St.  Rep.  584,  32  plaintiff  was  ruled  out  in  Patte:sou 
L.  R.  A.  744,  67  N.  W.  505;  Schlott-  v.  Wilson,  101  N.  C,  594,  8  S.  E.  341. 
man  v.  Hoffman,  73  Miss.  188  55  Am.  3.  Mackie  v.  Story,  3  Otto,  589,  23 
St.  Rep.  527,  18  So.  893;  Hanvy  v  L.  Ed.  986;  Clark  v.  Clerk,  2  Lea, 
Moore,    79    S.   E.    772,    140    Ga.    691;  723. 

Dale   V.   Dale,   88   A.   445,    241    Penn.  4.  Wilkins  v.   Allen,   18   How.   385, 

234.  15  L.  Ed.  396;  King  v.  Ackerman,  2 

2.  Suf/ra,  §  527.  A  will  cannot  be  Black,  408,  17  L.  Ed.  292;  Sims  v. 
contradicted  aa  to  Die  amount  stated  Sims,    94   Va.   580,    64   Am.    St.    Rep. 

772,  27  S.  E.  436. 

744 


CHAP. 


III.]  EXTRINSIC    EVIDENCE.  §    569 


after  its  execution  without  the  testator's  knowledge  and  consent, 
or  that  some  fundamental  error  prevented  him  from  executing  the 
right  instrument,  this  would  have  afforded  ground  for  amending 
or  rejecting  the  will  in  probate,  upon  proper  evidence  of  the  facts, 
and  the  intervention  of  equity  to  correct  such  mistakes  is  to  be 
cautiously  exercised;*'  but  taking  the  instrument  as  probated  and 
supposing  it  to  be  that  which  the  testator  and  his  witnesses  solemnly 
executed,  no  court  of  construction  can  change  its  tenor  or  tamper 
with  its  definite  expression.     That  which  a  testator  executes  as 
his  will  must  so  operate,  notwithstanding  his  mistake  of  law ;  ^  nor 
can  it  be  set  up  from  drafts,  from  contemporaneous  memoranda, 
or  even  from  the  direct  testimony  of  one's  own  scrivener  or  copyist, 
still  less  that  loose  hearsay  which  is  always  untrustworthy,  that 
the  decedent  mistook  in  fact  what  has  been  written  out.^     For  if 
competent  to  make  his  will  and  executing  the  instrument  freely  and 
intelligently  as  his  own  a  testator  must  be  taken  to  have  adopted 
the  contents  as  his  own,  and  nothing  surely  can  prevent  a  person 
from  doing  so  at  the  last  moment  or  silently;  and  it  is  to  guard 
the  instrument  as  an  authentic  disposition  that  the  writing,  the 
signatures,  and  the  attestation  are  all  required  at  the  present  day. 
But  what  courts  of  construction  can  and  will  do  our  two  pre- 
ceding chapters  have  indicated.     They  take  the  instrument  as  a 
whole  and  bring  all  parts,  all  provisions  together,  and  try  to  dis- 
cover the  general  meaning  without  resort  to  any  proof  aliunde; 
they  bend  the  lesser  sense  to  the  larger;  and  the  intent  thus  dis- 
cerned through  the  probated  writing  as  a  whole,  aided  by  rules 
of  presumption,  shapes  their  interpretation  of  the  instrument.  If 
without  other  influences,  other  proof,  a  clear  and  unambiguous  dis- 
position is  obtained,  that  disposition  prevails ;  and  should  the  tes- 
tator's real  intention  be  thereby  frustrated,  it  is  his  own  carelessly 
adopted  or  ill-chosen  language  that  must  answer  for  it. 

5.  Supra,  §§  214-220.  8.  See  Frick  v.  Frick,  82  Md.  218, 

6.  Supra.  §  220.  53  A.  462. 

7.  Supra,  §  275. 

745 


I  570  LAW  OF  WILLS.  [PAET  VL 

§  570.  Parol   Evidence   Inadmissible  to  change   Rules   of   Con- 
struction, etc. 
jSTor  does  it  appear  that  sufficient  ground  is  afforded  for  ad- 
mitting parol  evidence  of  one's  intention  when  its  purpose  is  es- 
sentially to  control  or  qualify  the  general  rules  of  construction,  al- 
ready stated  at  length.^     Presumptions,  or  the  prima  facie  effect 
and  meaning  of  detached  words  and  phrases,  are  controlled  and 
modified  readily  enough  by  reference  to  the  context  and  scope  of 
the  will  without  going  outside  the  instrument  at  all,  provided  a 
clear  conclusion  is  reached  without  external  assistance.     Words 
may  be  divested  of  their  technical  and  literal  force  by  this  refer- 
ence to  the  context ;  ^  but  the  court  does  not  travel  beyond  the  con- 
text needessly  for  that  purpose ;  and  its  discretion  not  to  be  further 
instructed  ought  to  suffice.     ISTo  extraneous  writing  which  declares 
that  one's  will  shall  be  construed  according  to  its  most  obvious  mean- 
ing without  regard  to  technicalities  can  be  used  to  swerve  the  court 
from  its  usual  course  of  reference  to  the  will  alone.^      No  extrinsic 
evidence,  oral  or  written,  to  show  that  the  testator  habitually  or 
when  he  executed  that  particular  will  used  words  in  some  peculiar, 
inexact,  or  popular  sense,  can  be  adduced  for  diverting  words  and 
phrases  from  the  meaning  which  the  language  of  the  instrument 
affords  unaided,^  or  even  for  confirming  the  court  in  its  opinion 

9.  See  cs.  1  &  2,  supra.  tion   of  the  unrevcked   and  operating 

1.  Supra,  §  470.  Thus  the  word  one.  Hughes  v.  Turner,  3  My.  &  K. 
"seisin"  has  been  treated  as  mean-  666;  Bowes  Re,  W.  N.  (1889)  138. 
ing  mere  possession  and  not  investing  Nor  a  memorandum  of  what  the  tes- 
with  the  entire  title.  Lucas  v.  tator  declared  between  the  making  of 
Brooks,  18  Wall.  436,  21  L.  Ed.  779.  his   will    and   his   death.      Thomas   v. 

2.  Sullivan  v.  Wiiithrop,  1  Sumn.  1.  Lines,  83  N.  0.  191.     And  see  90  N. 

3.  4  Dow.  P.  C.   65;   Eborts  v.  Eb-  C.  597,  619. 

erts,  42  Mich.  404;   Brown  v.  Brown,  See   further   Benner's   Will.   113   N. 

11  East,  441;   Shore  v.  Wilson.  9  CI.  W.  663,  133  Wis.  325;  190  N.  Y.  128, 

&    F.    558;    Mounsey    v.    Blamire,    4  82  N.  E.  1093;   Scott  v.  Scott,  114  N. 

Russ.  384;  2  Jarm.  Wills,  417;  1  Jur.  W.  881,  137  Iowa,  239;  Best  v.  Berry, 

N.  S.  994;  Baker's  Appeal,  150  Penn.  75  N.  E.  743,  189  Alass.  510,  109,  Am. 

St.  590.     Not  even  can  a  revoked  will  St.   Rep.   651;    Bryan   v.   Bigelow,    60 

be  looked  at  to  influence  the  construe-  A.    266,   77    Conn.    604,    107    Am.   St. 

746 


CHAP.    III.]  EXTEINSIC    EVIDENCE.  §    571 

of  what  was  truly  intended ;  supposing  of  course  that  an  appro- 
priate gift  is  found  in  the  will  itself  which  makes  good  sense  when 
applied  to  its  surroundings.* 

§  571.  Meaning  of  Words  interpreted  by  Will;  Punctuation,  etc. 

As  we  have  shown,^  it  is  the  expressed  intention  of  the  testator, 
that  which  his  will  imports,  and  not  any  conjectural  intention  of 
his  outside  of  the  will  which  might  or  might  not  be  capable  of 
demonstration,  that  the  court  relies  upon ;  and  having  ascertained 
that  expressed  intention  to  its  satisfaction,  the  tribunal  investigates 
no  farther.  Its  conclusion  may  give  words  their  technical  or  literal 
import,  or  may  not ;  it  may  give  expressions  their  ordinary  and 
grammatical  sense,  or  may  not;  but  the  meaning  settled 
upon,  if  settled  intelligibly,  is  that  which  the  words  and  language 
of  the  whole  will  properly  interpreted  convey  per  se. 

Punctuation  here  has  its  use,  though  an  ancillary  one;  and  pa- 
rentheses, stops,  capital  letters,  and  the  like  may  be  taken  into  con- 
sideration when  the  will  is  not  clearly  interpreted  otherwise.®  But 
documents  the  most  formal  are  apt  to  use  punctuation  marks,  and 
commas  especially,  without  much  precision,  the  more  so  that  the 
usual  language  of  such  writings  is  not  that  of  everyday  life ;  hence 
the  bearing  of  such  marks  is  circumstantial  and  not  very  positive; 

Rep.     64;      Smart's     Goods,      (1902)  "grandchildren,"  which  tends  to  per- 

Prob.  238;  Webb  v.  Hayden,  65  S.  W.  petuity,    is    not    to    be    controlled    by 

760,  166  Mo.  39;   51  A.  564,  74  Conn,  showing    that    a   woman    is    past    the 

576,  92  Am.   St.   Rep.   235;    64  N.   E.  time  of  child-bearing.     39  Ch.  D.  155. 
345,  197  111.  398;  Brown  v.  Tuschoff,  In  this  connection  the  first  three  of 

138  S.  W.  497,  235  Mo.  449;    186   F.  Sir  James  Wigram's  propositions  con- 

71,   108    C.   C.  A.    183;    Hopper's   Es-  cerning  the  use  of  extrinsic  evidence 

tate,  134  N.  W.  237,  90  Neb.  410;   73  (which   are   stated   at   length    at   the 

S.  E.  971,  70  W.  Va.  250;  Van  Gallow  close  of  this   chapter)    are  worthy  of 

V.     Brandt,     134    N.    W.     1018,     168  a   reference.      See   Wigram   Wills,   pi. 

Mich.   642;   Rodisch  v.  Moore,  101  N.  21,  24,  51. 
E.  206,  257  111.  615.  5.  Supra,  c.  1. 

4.  Rules   for   the   general   construe-  6.  Hawkins  Wills,  7,  8;   Morrall  v. 

tion  of  technical  words  have  already  Sutton,  1  Phill.  533;  2  Coll.  201;  Child 

been    set    forth.      Supra,    §§    470  472.  v.   Elsworth,   2   D.   M.   &   G.   679;    17 

The   legal   effect   of  a   remote  gift  to  Beav.  591. 

747 


§    572  LAW    OF    WILLS.  [PAET    VI. 

and  punctuation  of  itself  affords  no  ground  for  creating  an  am- 
biguity.^ 

§  572.  Extrinsic  Evidence,  how  far  Admissible  to  resolve  what 
is  Doubtful. 

But  all  that  has  been  said  here  assumes  the  court  to  have  reached 
something  clear,  sensible,  and  unambigTious  as  the  result  of  a  criti- 
cal scrutiny  of  the  instrument  in  all  its  parts,  and  after  presump- 
tions have  been  balanced  and  modified  by  a  patient  comparison  of 
the  context.  All  this  scrutiny  and  comparison  may  leave  the  court 
nevertheless  in  doubt  as  to  what  the  testator  and  the  will  intended 
upon  some  particular  point  in  a  given  case ;  and  hence,  to  resolve 
what  is  uncertain,  but  not  to  change  or  contradict  what  is  plain, 
nor  to  substitute  or  insert  new  matter,  the  court  admits  extrinsic 
evidence  of  circumstances  and  surroundings  in  aid  of  the  testator's 
meaning.  And  the  object  of  such  evidence  is  to  put  the  court  in 
the  testator's  place,  and  ascertain  better  what  he  intended." 

It  is  this  senseless  or  uncertain  situation  of  things  which  the 
present  chapter  is  more  especially  to  deal  with.  But  the  extrinsio 
evidence  of  merely  collateral  facts  and  surrounding  circumstances 
in  aid  of  construction,  we  subordinate  to  another  inquiry,  deemed 
vital  by  modem  courts,  namely,  how  far  evidence  of  what  were  the 
testator's  actual  testamentary  intentions  may  be  adduced  to  remove 
a  doubt,  and  make  the  will  operate  with  sense  and  consistency.  In 
other  words,  we  ask  whether  and  in  what  instances  one's  instruc- 
tions for  his  will,  his  memoranda,  his  declarations,  oral  or  written, 
contemporaneous  or  otherwise,  as  to  what  he  had  done  or  meant  to 
do  by  his  will,  and  the  like  secondary  proof  may  be  set  up  in  direct 
proof  of  his  intention  dehors  the  will  itself,  the  written  instrument, 
which  embodies  primarily  his  last  wishes. 

7.  See  Arcularies  v.  Swett,  25  Barb.  835  (N.  J.  Eq.)  ;  Shipley  v.  Mercan- 
406;  §  477  svpra.  tile    Co.,    102    Md.    649,    62    A.    814; 

8.  68  A.  462,  74  N.  H.  380;  113  N.  Schapiro  v.  Howard,  78  A.  58,  lia 
W.  759,  136  Iowa,  165,  125  Am.  St.  Md.  360;  Wright  v.  Wright,  125  N. 
Pa-p.  250;  68  A.  373,  80  Conn.  338;  Y.  S.  875;  Northrop  v.  Lumb  t  Co.» 
106  N.  W.  193,  129  Iowa,  686;   63  A.  186  F.  770,  108  C.  C.  A.  640. 

748 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    573 

Another  consideration  here  occurs ;  namely,  that  while  a  writ- 
ten will  may  speak  sufficiently  of  the  testator's  purpose,  that  pur- 
pose has  to  be  applied  to  definite  persons  and  things.  Doubt  and 
uncertainty  may  arise  out  of  this  application  of  the  gift,  as  in  as- 
certaining sensibly  the  subject  or  object  or  the  interest  given, 
whether  lapse  has  occurred  by  a  death,  and  so  on. 

§  573.  Extrinsic  Evidence  in  Aid  of  an  Equivocal  Description. 

In  the  first  place,  and  most  positively,  extrinsic  evidence  of  in- 
tention (or  parol  evidence,  as  it  is  often  called  ®)  is  admissible  to 
determine  which  of  two  or  more  persons  or  things  was  intended 
under  an  equivocal  description.  As  for  example,  where  a  testator 
devises  his  manor  of  Dale,  and  it  is  found  that  he  has  two  manors 
of  that  description ;  or  gives  a  legacy  to  John  Eoe,  and  there  prove 
two  nephews,  or  a  father  and  son,  bearing  that  name.^ 

Instances  in  the  reports  under  this  head  are  numerous.  As,  for 
example,  where  a  testator  who  made  a  bequest  to  "  William  Rey- 
nolds, one  of  my  farming  men,"  had  in  fact  two  persons  of  that 
name  in  his  employ.^  And  where  the  devise  was  to  "  John  Cluer," 
and  both  father  and  son  bore  that  name.^  And  where  a  legacy  was 
provided  for  the  "  Bible  Society,"  there  being  more  than  one  such 
society.*    And  evidence  has  been  admitted  to  show  that  "  my  cousin 

9.  We  use  ''  parol  "  here  simply  to  both    baptized    with    the    same   name, 

denote   written   or   oral   proof    dehors  and    both    living    at   the  time   of   the 

the   instrument,   and   not   by   way   of  will,    so   that    it   may   not   be   known 

contrast  to  "  s;  ecialty,"   since  a  will  who     was    meant     without     extrinsic 

is  not  of  necessity  an  instrument  un-  proof.     This   illustration,  though  per- 

der  seal.  liaps   farfetched,   may   serve.      5    Rep. 

1.  Miller  v.  Ti  avers,  8  Bing.  244;  1  68;  Hob.  32. 

Greenl.    Ev.    §    290;    2    Jarm.    Wills,  4.  Tilton    v.    American     Bible     So- 

430;   Wigram  Wills,  130.  ciety,  60  N.  H.  377,  49  Am.  Rep.  321. 

2.  Reynolds  v.  Whelan,  16  L.  J.  Evidence  that  an  annual  contribution 
Ch.  434.  was  taken  for  one  of  them  in  the  tes- 

3.  Jones  v.  Newman,  W.  Bl.  60.  tator's  church  is  competent  on  this 
And  see  Morgan  v.  Morgan,  1  Cr.  &  point.  lb.  And,  as  to  identifying 
M.  235;  Gord  v.  Needs,  2  M.  &  W.  persons  or  property,  the  subject  or 
129.  The  old  reports  suppose  the  object  of  the  gift,  see  74  S.  E.  733.  159 
case    of    a    father    having    two    sons,  N.  C.  74;  Keeler  v.  Trust  Co.,  97  N. 

749 


§    574:  LAW    OF    WILLS.  [PART    VI. 

Harriet  Cloak  "  meant  a  cousin's  wife,  who  bore  that  name,  instead 
of  a  cousin  whose  Christian  name  was  Harriet  but  whose  surname 
had  been  changed  by  marriage ;  ^  and  that  where  a  residuary  estate 
was  given  for  equal  division  "  between  the  Board  of  Foreign  and 
the  Board  of  Home  Missions"  (such  Boards  being  found  in  vari- 
ous religious  denominations),  the  testator,  being  a  zealous  Presby- 
terian, intended  the  gift  for  Boards  of  the  Presbyterian  Church.^ 

§  574.  The  Same  Subject. 

Extrinsic  evidence  may  likewise,  as  it  is  often  held,  clear  up  a 
general  uncertainty  of  description  left  in  the  will  as  to  the  thing 
given  or  the  object  of  the  gift,  even  though  no  alternative  subject- 
matter  or  object  is  definitely  presented  at  all.  As,  perhaps,  in  an 
English  case,  which  has  provoked  much  controversy,  where  a  leg- 
acy was  written  out  to  Catherine  Earnley,  and  it  appeared  in  proof 
that  there  was  no  such  person,  but  one  Gertrude  Yardley  (common- 
ly called  Gatty),  for  whom  it  had  been  doubtless  meant,  as  the  will 
was  written  from  dictation  by  a  scrivener  who  mistook  the  name 
when  the  testator  pronounced  it  in  a  low  and  feeble  voice,  and 
wrote  by  the  sound.^ 

And  where,  again,  the  description  of  the  property  or  the  person 
is  partly  wrong  and  partly  right,  but  sufficiently  right  for  a  basis 
of  identity ;  as  in  a  bequest  to  "  Sophia  Still,  the  daughter  of  Peter 
Still,  of  Eussell  Square,"  who  had  two  daughters,  neither  of  whom 
bore  that  name  but  one  was  Selina.^  And,  generally  speaking, 
where  the  gift  is  to  a  person  whose  surname  or  Christian  name 

E.     1061,     253    111.    528;     Ofner    Re  name);   87  A.  394,  119  Md.  602    (ref- 

[1900]    1    Ch.    60    (document    of    in-  erenee  to  an  extrinsic  fact)  ;    144  N. 

struetions)  ;    '83  A.   988,   117   Md.   27  W.  164   (wrong  number  in  U.  S.  sur- 

( misnomer     of     church);      Pope     v.  veyor's  description  of  land). 

Hinckley,    90   N.    E.    798,    209    Mass.  5.  Taylor  Re,  34  Ch.  D.  255. 

323;   108  Me.  512;   100  N.  E.  57,  213  6.  Gilmer  v.  Stone,  120  U.  S.   586, 

Mass,   117;    97  S.  E.   563,   161   N.   C.  30  L.  Ed.  734. 

601;    102   N,    E.    741,    259    111.    288;  7.  Beaumont    v.    Fell,    2    P.    Wms. 

Abbott  V.  Lewis,   88  A.  98,  77  N.  H.  140. 

74   (two  or  more  answering  the  .same  8.  Still  v,  Hoste,  6  Mad.  192. 

750 


CHAP.    III.] 


EXTRINSIC    EVIDENCE. 


74 


(but  not  both)  is  mistaken;  or  whose  description  is  imperfect  or 
not  wholly  accurate.  For  here  falsa  demonstratio  is  stricken  from 
the  will  by  construction  and  extrinsic  proof  is  sought  to  supply  the 
full  intent,  not  to  change  or  create  an  intent.  And  thus  it  is  also 
when  an  estate  is  devised  called  A,  and  described  as  being  in  the 
occupation  of  B,  when  it  is  not  wholly  so  occupied.®  And  a  gift  of 
"  stock  in  the  £.4  per  cent,  annuities,"  has  been  taken  as  intended 
for  "  stock  "  in  annunities  of  another  description.^  And  a  devise 
of  land,  correct  in  its  general  description,  may  be  established  by 
the  correction  upon  extrinsic  testimony  as  to  what  it  describes  in 
detail  or  vice  vcrsa.- 

The  principle  in  this  latter  class  of  cases  is,  that  where  there  is, 
in  the  main,  a  sufficient  description  in  the  will  to  ascertain  ac- 
curately what  is  devised  or  bequeathed,  a  part  which  is  inaccurate 
may  be  stricken  out  as  surplusage,  but  that  nothing  substantial 
shall  be  added  to  the  will.^    We  have  elsewhere  mentioned  other 


9.  Tindal,  C.  J.,  in  Miller  v.  Travers, 
8  Bing.  244;  Goodtitle  v.  Southern,  1 
M.  &  S.  299;  1  P.  Wms.  2S6;  Cox  v. 
Bennett,  L.  R.  6  Eq.  422. 

1.  Selwood  V.  Mildmay,  3  Ves.  Jr. 
306.  Sir  James  Wigrara  doubts  the 
authority  of  this  case.  Wigram  Wills, 
pi.  131.  "  The  case  is  certainly  a  very 
strong  one,"  observes  Tindal,  C.  J., 
in  Miller  v.  Travers,  supra;  "but  the 
decision  appears  to  us  to  range  itself 
under  the  head  that  falsa  demon- 
stratio non  nocet,  where  enough  ap- 
pears upon  the  will  itself  to  show  the 
intention  after  the  false  description 
is  rejected." 

2.  Pocock  V.  Reddinger,  108  Ind. 
573,  58  Am.  Rep.  71,  9  N.  E.  473; 
Rogers  v.  Rogers,  78  Gra.  688,  3  S.  E. 
451;  156  111.  116,  47  Am.  St.  Rep.  181, 
28  L.  R.  A.  149,  40  N.  E.  553 ;  Decker 
V.  Decker,  121  111.  341,  12  N.  E.  750; 
Lomax  v.  Lomax,  75  N.  E.  1076,  218 
111.    629,    6   L.    R.    A.    (N.    S.)     942; 


Sorenson  v.  Carey,  104  N.  W.  958,  96 
Minn.  202;  156  111.  116,  40  N.  E.  553; 
73  S.  E.  988,  158  N.  C.  204  (land)  ; 
Hopper  V.  Hansen,  134  N.  W.  237,  90 
Neb.  410;  Napier  v.  Little,  73  S.  E. 
3,  137  Ga.  242. 

Where  the  intended  subject  or  ob- 
ject of  the  gift  is  made  clear,  by  ex- 
trinsic evidence  or  without  it,  no 
other  subject  or  object  will  be  taken, 
even  though  the  testator's  general 
purpose  would  thereby  be  better 
effected.  Mason  v.  Hospital,  93  N.  E. 
637,  201  Mass.  419.  Cf.  Hansen  Re, 
132  N.  Y.  S.  257.  Cf..  as  to  erroneous 
description,  where  the  court  will  not 
go  outside  the  will,  §  518. 

3.  Tindal,  C.  J.,  in  Miller  v.  Travers, 
supra.  "An  averment  to  take  away 
any  surplusage  is  good,  but  not  to  in- 
crease that  which  is  defective  in  the 
will  of  the  testator."  Anderson,  C. 
J.,  in  Godb.  Rep.  131. 


751 


§     575  LAW     OF     WILLS.  [part    VL 

instances  which  are  referable  to  the  same  head/  and  have  shown 
that  while  the  maxim  holds  good  that  a  false  demonstration  does 
not  injure,  there  is  another  maxim  with  which  it  sometimes  con- 
flicts, namely,  that  a  court  must  gather  the  best  interpretation  pos- 
t-ible  from  the  whole  will." 

"  Equivocal  description  "  in  descriptions  which  are  partly  in- 
accurate, consists  in  this,  according  to  English  authority:  that  the 
inaccurate  and  rejected  description  applies  to  none  of  the  persons 
or  things  in  question,  while  the  remaining  description  is  equivocal 
with  respect  to  them;  but  a  description,  which  is  wholly  inappli- 
cable to  any  of  the  persons  or  things  in  question  cannot  be  equivo- 
cal, for  here,  when  the  accurate  part  of  the  description  is  rejected, 
nothing  remains.^ 

§  575.  The  Same  Subject:  Late  English  and  American  Cases 
compared. 
Later  English  precedents,  dating  from  1833,  checked  a  growing 
disposition  of  the  courts  to  admit  parol  proof  of  intention 
to  correct  a  will,  and  took  a  conservative  direction.  On  an 
appeal  from  the  Vice-chancellor  in  a  case  where  one  had  devised 
to  A  all  his  real  estate  "  in  the  county  of  Limerick  and  city  of  Lim- 
erick," and  proof  was  offered  that  he  really  meant  by  this  "  in  the 
county  of  Clare  and  city  of  Limerick,"  owning  in  fact  lands  in 
this  latter  county  as  well  as  in  the  city  of  Limerick,  but  none  what- 
ever in  the  county  of  Limerick,  the  order  below  favorable  to  this 
plea  was  reversed  and  proof  of  intention  dehors  the  will  utterly 
refused  for  changing  what  the  will  plainly  enough  expressed.^ 
Cases  of  somewhat  earlier  date  in  the  House  of  Lords  had  rejected 
parol  proof  that  a  devise  of  "  my  estate  of  A"  meant  to  include 

4.  Moreland  v.  Brady,  8  Or.  303,  34  5.  Supra,  §  517;  54  Penn.  St.  245. 

Am.  Rep.  581;   Black  v.  Ricliards,  95  6.    Hawkins    Wills,    11;    Miller    v. 

Ind.  184;  Drew  v.  Drew,  28  N.  H.  489;  Travers,  8  Bing.  244;  Hiscocks  v.  His- 

Martin    v.    Smith,     124    Mass.     Ill;  cocks,  5  M.  &  W.  363;  1  Mer.  384. 
supra.  §§  510-519,  and  cases  cited;   1  7.  Miller  v.  Travers,  2  Bing.  244. 

Cli.  D.  01. 

752 


€HAr.    III.]  EXTRINSIC    EVIDENCE.  §    575 

estates  elsewhere,  as  the  testator  used  these  words/  or  so  as  to 
insert  a  descriptive  word  wdiich  would  have  given  the  will  a  dif- 
ferent purport  from  what  its  face  expressed.^  In  a  case  still  later 
than  any  of  these  the  court  circumscribed  still  more  closely  the 
range  of  extrinsic  proof  to  show  what  a  testator  intended.^  All  of 
these  decisions  preceded  the  new  Statute  of  Victoria.'  Sir  James 
Wigram  had  already  led  in  the  remonstrance  against  the  drift  of 
some  earlier  cases,  of  which  Beaumont  v,  F-ell  furnished  a  striking 
example ;  ^  and  the  conclusion  as  stated  by  him  is  that  extrirusic 
evidence  of  intent  shall  only  be  received  where  description  is  in 
terms  applicable  indifferently  to  more  than  one  person  or  thing. 

American  cases  do  not  seem  always  to  confine  so  strictly  the  in- 
stances of  doubtful  description.  Thus,  where  two  parts  of  a  de- 
scription applied  respectively  to  different  properties,  evidence  of 
the  testator's  declarations  was  admitted  to  show  what  property 
he  intended.*  And  it  is  held  that  if  in  a  matter  of  description 
there  is  such  a  mistake  that  no  one  person  or  thing  corresponds  to 
the  description  in  all  particulars,  but  there  is  one  who  correspond?^ 
in  many  particulars,  and  on  one  other  who  can  be  intended,  such 
person  will  take.^     Latent  ambiguities,  so  called,  are  resolved  by 

8.  Oxenden  v.  Chichester,  4  Dow,  plicitly  declares  as  written  out  and 
P.  C.  65.  formally   signed  and   witnessed. 

9.  Newburgh  v.  Newburgh,  1  M.  &  We  may  add  that  the  will  in  Beau- 
Sc.  352.  mont  v.  Fell  was  made  before  the  en- 

1.  Hiscocks  V.  Hiscocks,  5  M.  &  W.  actment  of  Victoria,  which  established 
363   (1832).  solemnities  of  execution   alike   where 

2.  See  supra,  §§  252,  253 ;  Appendix,  personal  or  real  property  was  given 
post.  by    testament.      And    the    Master    of 

3.  Wigram  Wills,  pi.  149-179.  The  Rolls,  though  admitting  the  parol 
justice  of  the  decision  in  Beaumont  v.  evidence  to  establish  the  legacy,  ob- 
Fell,  supra,  %  574,  can  hardly  be  ques-  served  that  had  it  been  a  devise  of 
tioned,  under  the  singular  circum-  lands,  the  utter  misdescription  of 
stances  of  the  case.  Be  this  as  it  name  would  have  made  it  void, 
may,  direct  proof  of  intention  is  cer-  4.  Doe  v.  Roe,  1  Wend.  541. 

'tainly  objectionable  where  its  effect  is  5.  Tucker  v.  Seaman's  Aid  Society, 

to  establish  orally  some  different  dis-  7  Met.  188,  per  Shaw,  C.  J.,  Howard 
position  from  what  the  will  itself  ex-      v.    American    Peace    Society,    49    Me. 

288. 

48  753 


575 


LAW    OF    WILLS. 


[part  VI. 


the  testator's  declarations  and  other  secondary  proof  of  his  inten- 
tion when  the  will's  own  language  does  not  suffice.®  The  partially 
true  description  is  treated  as  furnishing  a  case  of  equivocal  de- 
scription, as  well  as  that  where  one  or  more  persons  or  things  an- 
swer the  description.^  Where  a  testator  gave  all  his  "  back  land  " 
to  certain  devisees,  parol  evidence  was  admitted  to  show  what  he 
intended  by  that  tenn.^  And  in  a  Virginia  case  where  the  will 
showed  a  legacy  to  a  namesake  of  the  testator  described  as  "  Sam- 
uel G.  son  of  Captain  John  F.  Slaughter,"  there  was  no  such  per- 
son ;  but  parol  evidence  was  admitted  to  show  that  the  testator 
meant  by  this  ''  Samuel  G.,  son  of  Captain  John  F.  Hawkins."  ' 
These  are  a  few  among  the  many  examples  which  American  re- 
ports supply,  to  show  how  readily  our  own  courts  permit  the  ra- 
tional intention  of  a  testator  to  be  aided  by  extrinsic  evidence  of 
what  he  meant,  where  the  will  as  applied  to  a  subject  or  object  of 
description,  raises  some  doubt  which,  if  not  resolved,  must  cause 
the  testamentary  provision  to  fail  for  uncertainty  or  sen-elessness. 


6.  Cotton  V.  Sraitliwick,  66  Me.  360; 
76  Me.  527;  Flannery  v.  Higlitower, 
97  Ga.  592,  25  S.  E.  371.  But  as  to  a 
testator's  declarations,  see  82  Md.  218. 

7.  lb.  And  see  4  Paige,  271;  3 
Watts,  385;  Bigelow's  Am.  Notes  to 
1  Jarm.  430,  431;  Allen  v.  Lyons,  2 
Wash.  475;  Winkley  v.  Kaime,  32 
N.  H.  268. 

8.  Ryerss  v.  Wheeler,  22  Wend.  148. 
And  see  Black  v.  Hill,  32  Ohio  St. 
313.  Where  a  power  is  given  in  a 
will  to  sell  the  testator's  "  specula- 
tion lands,"  parol  evidence  may  iden- 
tify these  lands.  Brown  v.  Brown, 
106  N.  C.  451,  11  S.  E.  647.  And 
where  a  bequest  is  made  to  A,  "  in 
addition  to  what  I  have  already  given 
him,"  the  sums  represented  by  notes 
wliich  appear  among  assets  of  the 
estate,  may  be  shown  as  the  gift  in 
question.  Dougherty  v.  Rogers,  119 
lud.  254,  20  N.  E.  779.    And  see  Scott 

7 


v.  Neeves,  77  Wis.  305,  45  N.  W.  421. 
Parol  evidence  may  identify  land  not 
clearly  described,  which  is  the  subject 
of  devise.  Jones  v.  Quattlebaum,  31 
S.  C.  606. 

9.  Hawkins  v.  Garland,  76  Va.  189. 
The  court  here  relied  upon  the  Eng- 
lish case  of  Beaumont  v.  Fell,  supra. 
See  also  Taylor  v.  Tolen,  38  N.  J.  Eq. 
91.  Extrinsic  evidence  is  admissible 
to  show  that  a  legacy,  which  appears 
on  the  face  of  the  will  to  be  general, 
was  intended  to  be  specific.  Hastings 
Re,  6  Dem.  307.  For  explaining  what 
the  M-ill  meant  by  "  balance  of  estate  " 
extrinsic  evidence  is  admissible.  Frick 
V.  Frick,  82  Md.  218.  And  see  68  A. 
373,  80  Conn.  338;  54  A.  484,  234 
Penn,  St.  397;  72  P.  502,  31  Wash. 
643;  94  N.  W.  447,  119  Iowa,  731; 
49  S.  E.  743,  121  Ga.  836,  104  Am.  St. 
Rep.  185;  Wheeler's  Will,  57  N.  E. 
1128,  161  N.  Y.  652. 

54 


CHAP.    III.]  EXTKINSIC    EVIDENCE.  §    577 

§  576.  Conclusion  as  to  Extrinsic  Proof  of  Intent  in  Case  of 
Doubtful  Description. 

The  two  classes  of  cases,  then,  in  which  direct  evidence  dehors 
the  will  appears  admissible  to  show  the  testator's  intention,  are 
these:  (1)  Where  the  person  or  thing,  the  object  or  subject  of  the 
disposition,  is  described  in  terms  which  are  applicable  indiffer- 
ently to  more  than  one  person  or  thing.  (2)  Where  the  description 
of  the  person  or  thing  is  partly  correct  and  partly  incorrect,  and 
the  correct  part  leaves  something  equivocal.^  Or,  perhaps,  to  take 
a  broader  view  of  the  subject,  extrinsic  evidence  of  intention  may 
be  admitted  wherever  the  instrument  is  insufficiently  expressed  or 
applied  in  terms  so  as  to  raise  a  doubt  of  the  object  or  subject  in- 
tended, and,  in  order  to  give  the  disposition  effect,  that  doubt  must 
be  cleared  and  the  insufficiency  supplied.  On  the  other  hand,  such 
extraneous  proof  should  be  ruled  out,  whenever  its  tendency  is  to 
establish  an  intention  different  in  essence  from  what  the  will  ex- 
presses on  its  own  face;  for  where  admissible  it  is  in  aid  of  the 
testator's  expressed  intention,  not  against  it. 

In  cases  of  this  kind,  moreover,  the  meaning  of  the  testator's 
words  is  not  usually  ambiguous  or  obscure  on  the  face  of  the  will, 
but  from  some  of  the  facts  and  circumstances  admitted  in  proof 
an  ambiguity  arises  as  to  applying  the  disposition  which  the  will 
sets  forth.  The  evidence  adduced  creates  no  gift  but  simply  directs 
and  explains  it. 

§  577.     Reference  to  Context  in  Equivocal  Description. 

An  apparent  uncertainty  of  description  of  this  sort  is  sometimes 
cleared,  moreover,  wholly  or  in  part  by  reference  to  the  contexr 
of  the  will  itself;  as  where  the  testator  devises  one  piece  of  land 

1.  Miller  v.  Travers,  8  Bing.  244.  see  Tindal,  C.  J.,  in  Miller  v.  Travers, 

Sir  James  Wigram  appears  to  nar-  8     Bing.     244.       See    also     Baird    v. 

row  the  proposition  down.     Wigram,  Boucher,   60   Miss.   326,   as   to   "  rent 

pi.  194.     So,  too,  does  the  language  of  and  personal"  property;   also  North- 

the    court    in    Hiscocks    v.    Hiscocks,  ern's  Estate  Re,  28  Ch.  D.  153.     The 

supra.     But  this  is  not  justified   by  policy  being  a  just  one,  it  should  re- 

tlie   precedents  we  have   cited.     And  ceive  a  just  and  liberal  interpretation. 

755 


§  578  LAW  OF  WILLS.  [PAKT  VL 

to  A.  B.  simply,  and  another  piece  to  A.  B.  of  Maiden,  Laving  two 
nephews  of  the  same  name,  one  of  whom  dwelt  at  Maiden  and  the 
other  elsewhere;  for  here  the  presumption  arises,  both  having 
equal  claims  as  natural  objects  of  the  testator's  bounty,  that  the 
Maiden  nephew  and  the  other  were  thus  distinguished,  and  evi- 
dence of  intention  aliunde  may  be  restrained  in  admission  or  re- 
fused altogether,^  to  resolve  the  doubt  which  the  circumstances 
and  situation  of  the  testator's  family  and  property  had  suggested. 
So  a  devise  or  bequest  to  William  Marshall  simpliciter  is  taken 
more  naturally  to  apply  to  one  of  that  simple  name  than  to  one 
William  J.  R.  B.  Marshall,^  and  to  Miss  S.  to  import  the  eldest 
of  the  daughters  rather  than  any  other  younger  one ;  *  though  the 
description  being  equivocal  in  either  instance,  parol  proof  of  in- 
tention might  be  let  in,  as  it  always  may  in  such  cases  where  the 
evidence  from  the  context  is  not  conclusive. 

§  578.  Extrinsic  Proof  cannot  aid  to  misconstrue. 

On  th'^  other  hand,  it  cannot  be  shown  by  extrinsic  proof  that 
when  the  testator  devised  the  manor  of  Dale  he  meant  to  give  an- 
other manor  bearing  a  totally  different  name ;  nor  that  by  John 
Eoe  he  intended  Peter  Doe,  quite  a  different  personage ;  and  the 
utter  failure  of  the  devise  or  legacy  in  consequence,  because  no 
such  land  or  no  such  personage  can  be  identified  as  that  described, 
affords  no  sufl&cient  reason,  according  to  the  better  opinion,  why 
the  court  should  create  a  gift  in  different  terms. ^ 

Hence  parol  evidence  of  intent  cannot  be  admitted  to  supply 
possible  omissions  or  defects  in  a  will  occurring  through  mere  mis- 
take or  inadvertence ;  nor  should  a  court,  for  any  assumed  purpose 
of  correcting  the  instrument  by  proof  aliunde  of  what  the  testator 

2.  ]\Iorf,'an  v.  M()r;,'aii,  1  Cr.  &  M.  5.  See  Chamberlayne,  Ev.,  §  2654; 
235;  Gord  v.  Needs,  2  M.  &  W.  129;  Miller  v.  Travers,  8  Bing.  244;  Ox- 
VVestlake  v.  VVestlake,  4  B.  &  A.  57.  enden  v.  Chichester,  4  Dow,  P.  C.  65; 

3.  Bennett  v.  Marshall,  2  K.  &  J.  1  M.  &  Sc.  352 ;  Hiscocks  v.  Hiscocks, 
740.  5  M.  &  VV.  363;  supra,  §  568. 

4.  Lee  v.  Pain,  4  Hare,  249. 

75G 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    578 

actually  intended,  change  a  description  which  is  wholly  inapplica- 
ble to  subject  or  object,  as  it  stands  written,  into  a  corresponding 
gift,  especially  if  the  words  are  clear,  and  have  a  definite  meaning 
of  their  own.  Thus,  whore  one  gives  a  legacy  to  "the  "  Seaman's 
Aid  Society,"  and  a  society  actually  exists  by  that  name,  it  can- 
not be  shown  that  the  testator  intended  another  society,  namely, 
the  "  Seaman's  Friend  Society  " ;  and  proof  that  the  testator  knew 
nothing  of  the  existence  of  the  former  society,  that  he  subscribed 
regularly  to  the  latter,  frequently  spoke  of  giving  it  a  legacy,  took 
a  deep  interest  in  its  welfare,  and  gave  directions  for  his  will  to 
the  scrivener,  who,  through  mistake,  wrote  the  wrong  name  in  the 
instrument,  is  accordingly  rejected.^ 

Moreover,  provisions  apparently  conflicting  which  are  contained 
in  the  will  itself,  repugnant  parts,  and  whatever  ambiguity  may 
arise  directly  from  the  face  of  the  instrument  and  the  expressions, 
must  be  resolved,  if  at  all,  by  construction,  and  not  by  external 
proof  of  what  was  intended.^  Hence  the  declarations  or  instruc- 
tions of  the  testator  to  the  person  who  wrote  the  will  must  be  ex- 
cluded in  this  connection.^  The  patent  contradiction  in  terms  of 
a  will  may  sometimes  be  rendered  harmless  by  a  generous  con- 
struction, but  never  by  parol  extraneous  proof  of  what  was  in- 
tended.^ 

But  by  all  this  is  meant,  not  that  the  description  in  the  will 
should  be  altogether  accurate  and  perfect,  but  that  it  must  be  so 
far  accurate  and  perfect  as  to  describe  the  subject  or  object  of  the 

6.  Tucker  v.  Seaman's  Aid  Society,  olds  v.  Reynolds,  43  S.  E.  878,  65  S. 

7  Met.   188.     And  see  8  Md.   507;    15  C.  390. 

N.   H.    317;    30   Penn.    St.   425,    437;  7.  Tucker  v.  Seaman's  Aid  Society, 

Jackson  v.  Sill,  11  Johns.  201,  6  Am.  supra;  Mann  v.  Mann,   1  Johns.   Ch. 

Dec.   363;    3   Met.   439;    Woodruff   v.  231;  Lewis  v.  Douglass,  14  R.  I.  604; 

Midgeon,   46   Conn.   236;    Engelthaler  Brearley  v.  Brearley,  1  Stockt.  21. 

V.  Engelthaler,  63  N.  E.  669,  196  111.  8.   Lewis  v.   Douglass,   supra. 

230;    Union   Trust   Co.  v.   St.   Luke's  9.   See   3    Fost.   46;    In  Hetley   Re, 

Hospital,   67   N.   E.    1090,   175   N.   Y.  (1902)    2  Ch.  866,  extrinsic  evidence 

505;  77  S.  C.  454,  58  S.  E.  420;  Reyn-  to  explain  a  power  of  disposition  void 

for  uncertainty  was  refused. 

757 


§  579  lAw   OF   WILLS.  [part  VI. 

gift  with  legal  certainty ;  ^  so  that  the  particular  specific  doubt 
once  removed,  the  court  may  conclude  with  confidence  that  the  in- 
tention of  the  will  is  carried  out,  and  not  some  intention  inferred 
outside  of  it,  or  what,  from  the  will's  own  expression,  was  no  con- 
sistent intention  of  any  kind.  For  "  if  the  description  of  the  per- 
son or  thing  (to  use  Sir  James  Wigram's  language)  be  wholly  in- 
applicable to  the  subject  intended  or  said  to  be  intended  by  it,  evi- 
den<3e  is  inadmissible  to  prove  who  or  what  the  testator  really  in- 
tended to  describe  " ;  ^  which  is  equivalent  to  repeating  what  we 
have  so  often  remarked,  that  the  court  is  not  to  set  up  by  parol 
evidence  a  different  will  from  that  which  the  testator  himself  ex- 
pressed and  executed. 

§  579.  Extrinsic  Proof  of  Facts  and  Circumstances,  not  of  Inten- 
tion, how  far  Admissible. 
Direct  proof  dehors  the  will  of  what  the  testator  actually  in- 
tended is  what  we  have  shown  the  courts  so  chary  of  admitting,  and 
this  out  of  deference  to  the  Statute  of  Frauds  and  other  legislation 
of  later  date,  which  require  wills  to  be  written  out  and  duly  exe- 
cuted. But  to  aid  the  context  of  the  instrument  by  extrinsic  proof 
of  the  circumstances  and  situation  of  the  testator  when  it  was  exe- 
cuted, is  constantly  permitted  at  the  court's  discretion,  and  this 
constitutes  a  proper,  indeed,  often  an  indispensable  matter  of  in- 
quiry when  construing  a  will.  For,  whatever  a  will  may  set  forth 
on  its  face,  its  application  is  to  persons  and  things  external ;  and 
hence  is  admitted  evidence  outside  the  instrument  of  facts  and 
circumstances  which  have  any  tendency  to  give  effect  and  opera- 
tion to  the  terms  of  the  will ;  such  as  the  names,  descriptions,  and 
designation  of  beneficiaries  named  in  the  will,  the  relation  they 
occupied  to  the  testator,  whether  the  testator  was  married  or  sin- 
gle, and  who  were  his  family,  what  was  the  state  of  his  property 
when  he  made  his  will  and  when  he  died,  and  other  like  collateral 
circumstances.  Such  evidence  being  explanatory  and  incidental 
is  admitted,  not  for  the  purpose  of  introducing  new  words  or  a  new 

1.  See   Wigram  Wills,  pi.   186.  2.  Wigram  Wills,  pi.  188. 

758 


CHAP. 


III.] 


EXTRINSIC    EVIDENCE. 


§  579 


intention  into  the  will,  but  so  as  to  give  an  intelligent  construction 
to  the  words  actually  used,  consistent  with  the  real  state  of  the  tes- 
tator's family  and  property;  in  short,  so  as  to  enable  the  court  to 
stand  in  the  testator's  place,  and  read  it  in  the  light  of  those  sur- 
roundings under  which  it  was  written  and  executed.^  For  it  is 
produced  to  prove  facts  which,  in  the  language  of  Lord  Coke, 
"  stand  well  with  the  words  of  the  will."  * 

How  wide  may  be  the  range    of    such    testimony    a    moment's 
thought  will  convince  us.     Hardly  a  disposition  informally  drawn 


3.  See  Tindall,  C.  J.,  in  Miller  v. 
Travers,  8  Bing.  244;  Lowe  v.  Hunt- 
ingtower,  4  Russ.  581;  Tucker  v.  Sea- 
man's Aid  Society,  7  Met.  188,  per 
Shaw,  C.  J. ;  Blake  v.  Hawkins,  98  U. 
S.  315;  Ladd  v.  Ladd,  68  A.  462,  74 
N.  H.  380;  Postlethwaite's  Appeal,  68 
Penn.  St.  477;  139  Mo.  456,  41  S.  W. 
238;  58  Kan.  438,  49  P.  527.  See  also 
Wigram  Wills,  pi.  59-95.  Even  the 
fact  that  the  will  was  written  out  by 
the  testator,  he  being  an  unprofes- 
sional man  and  unaccustomed  to  pre- 
cise expression,  has  been  thouglit  not 
unworthy  of  consideration.  2  Bush, 
171. 

4.  8  Rep.  155.  Parol  evidence  may 
be  adduced  for  showing  the  state  of 
the  testator's  property  when  he  made 
the  will.  Hyde  v.  Price,  1  Coop.  208; 
Brainerd  v.  Cowdrey,  16  Conn.  1;  1 
Jarm.  Wills,  422,  and  Bigelow's  note; 
Marshall's  Appeal,  2  Penn.  St.  388; 
108  Ind.  573.  Or  to  show  the  state  of 
his  family.  2  Jones  Eq.  420:  Rewalt 
V.  Ulrich,  23  Penn.  St.  388.  Or  other 
facts  known  to  the  testator  which  may 
reasonably  be  supposed  to  have  influ- 
enced the  particular  disposition.  2 
Pick.  243,  460;  W^otton  v.  Redd,  12 
Gratt.  196 ;  Wallace  v.  Foxnall,  95  N 
E.   985,  250  111.  616.     As  to  circum- 


stances attending  execution  of  the 
will  see  Jacobs  v.  Ditz,  102  N.  E.  1077, 
260  111.  98;  §  466. 

In  pronouncing  for  a  liberal  admis- 
sion of  extrinsic  facts  and  circum- 
stances to  aid  in  discovering  the  in- 
tention. Sir  James  Wigram  strongly 
insists  upon  his  distinction  between 
the  application  of  evidence  to  explain 
a  testator's  words,  and  its  application 
to  prove  intention  as  an  independent 
fact.  "  The  intention  for  the  admissi- 
bility of  which  we  are  now  contend- 
ing," he  continues,  "  is  of  the  former 
description.  It  does  not  per  se  ap- 
proach the  question  of  intention.  It 
is  wholly  collateral  to  it.  It  explains 
the  words  only  by  removing  the  cause 
of  their  apparent  ambiguity,  where  in 
truth  there  is  no  real  ambiguity.  It 
places  the  court  which  expounds  the 
will  in  the  situation  of  the  testator 
who  made  it,  and  the  words  of  the 
will  are  then  left  to  their  natural 
operation."     Wigram  Wills,  pi.  76. 

Among  other  considerations  why  ex- 
trinsic circumstances  should  be  re- 
sorted to  is  the  fact  that  the  same 
words,  properly  interpreted,  will  often 
mean  different  things  under  different 
circumstances.     Wigram,  pi.  77. 


759 


§    580  LAW    OF     WILLS.  [pART    VI. 

can  a  will  contain,  where  parol  proof  of  circumstances,  and  mucli 
of  it  scarcely  relevant,  has  not  been  adduced,  with  a  court's  sanc- 
tion, to  aid  in  construing  the  instrument.  The  main  object  is  to 
discover,  of  course,  the  testator's  intention,  and  in  order  to  do  so, 
the  court  reads  the  will  carefully  over  as  he  executed  it,  collecting 
his  intention  from  his  words;  but  as  words  in  every  will,  whether 
well  or  ill  employed,  refer  to  facts  and  circumstances  respecting 
the  testator's  property,  and  his  family  and  others  whom  he  names 
or  describes  therein,  the  true  meaning  and  application  of  those 
words  cannot  be  ascertained  without  proof  of  all  those  facts  and 
circumstances. 

Agreeably  to  this  doctrine,  a  court  may  look  beyond  the  written 
will  itself  and  be  guided  in  its  construction,  not  only  where  the 
object  or  subject  of  the  gift  is  in  dispute,  but  where  the  estate  or 
quantity  of  interest  given  is  not  clear  upon  the  face  of  the  will.^ 
The  will  is  often  thus  aided  and  reconciled  in  construction,  though 
not,  of  course,  contradicted ;  nor  is  such  proof  admitted  at  all  if 
the  simple  writing  be  sufficiently  understood  without  it.  For  where 
there  is  nothing  equivocal  or  uncertain  in  the  language  of  the  tes- 
tamentary instrument,  proof  of  the  circumstances  surrounding  the 
testator  remains  unimportant  and  hence  inadmissible  as  well  as 
proof  of  what  he  actually  intended.® 

§  580.  The  Same  Subject. 

If  direct  extrinsic  proof  of  the  testator's  intention  may  be  offered 
to  clear  up  equivocal  description  under  the  will,^  indirect  evidence, 
or  such  as  explains  the  testator's  circumstances,  habits,  and  man- 
ners, is  a  fortiori  admissible  besides.  And  even  in  cases  where  the 
stricter  rule  must  exclude  the  testator's  drafts,  his  instructions,  and 
declarations,  before  or  after  the  act  of  execution,  of  what  he  in- 
tended to  give,  evidence  of  extrinsic  circumstances  is  not  forbidden 

5.  Lowe  V.  Manners,  5  B.  &  Aid.  St.  Rep.  457,  21  N.  E.  137;  McGough 
917;  8  Bing.  244,  323;  Wigram  Wills,      v.  Hugliea,  18  R.  I.  768,  30  A.  851. 

pi.  00.  7.  Supra,  §  573;  Wigram  Wills,  pL 

6.  Wells  Re,  113  N.  Y.  39G,  10  Am.      59-95. 

760 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    580 

to  aid  in  a  just  interpretation.  Such  a  distinction  may  seem  a 
strange  one ;  for  this  very  proof  of  circumstances,  especially  when 
it  leads  closely  up  to  the  act  of  execution  and  its  surroundings,  may 
fall  scarcely  short  of  proving  in  fact  what  the  testator  actually 
meant,  outside  the  written  authentic  expression  of  his  last  wishes.^ 
Nevertheless,  the  distinction  is  tenable,  and  much  insisted  on;  and 
a  court  of  construction  may  check  oral  proof  which  comes  too  near 
to  the  factum  of  execution,  forbidding  issues  to  be  reopened  which 
the  probate  once  settled,  or  which  can  only  be  brought  up  in  equity 
when  its  jurisdiction  to  correct  mistakes  is  openly  invoked. 

But  the  evidence  here  sought  or  permitted  is  in  aid  of  conclu- 
sions which  the  will  itself  justifies,  but  does  not  make  quite  clear 
in  expression  or  application.  Direct  evidence  of  intention  alone, 
that  which  would  prove  intention  as  an  independent  fact,  virtually 
repeals  the  wills  act  and  supersedes  the  well-considered  policy  of 
our  law;  and  it  is  against  the  admission  of  extrinsic  testimony,  to 
show  independently  what  one  intended,  aside  from  what  the  will 
clearly  expresses,  that  the  line  is  drawn. 

Many  of  our  American  cases  are  of  less  force  as  precedents,  be- 
cause they  fail  either  to  announce  this  distinction  or  to  positively 
reject  it.  They  lay  down  the  general  maxim  that  parol  evidence 
is  admissible  in  all  cases  of  latent  ambiguity,  such  as  misdescrip- 
tion ;  but  whether  by  this  they  mean  direct  evidence  of  the  testa- 
tor's intention,  or  nothing  more  than  proof  of  surrounding  circum- 
stances of  the  testator's  property,  his  family,  and  the  like,  they  do 
not  always  clearly  specify.'  But  the  better  opinion  harmonizes 
with  the  doctrine,  long  ago  assert-ed  in  England,  that  where  the 
language  of  the  will  is  not  ambiguous,  but  states  clearly  an  inten- 
tion, no  extrinsic  evidence  is  admissible  to  show  a  different  and 
unexpressed  meaning  or  intention  on  the  testator's  part.'^ 

8.  Beaumont  v.  Fell,  2  P.  Wms.  140,  case.     And   see  Patterson   v.   Wilson, 

cited  supra,  §  574,  is  a  case  in  point.  101  N.  C.  594,  8  S.  E.  341. 
The  res  gestae  of  the  execution  being  9.  Winkley  v.  Kaine,  32  N.  H.  268; 

admitted,  it  hardly  needed  any  direct  2  Wash.   475;    2  Dana,  47;    Hawkins 

proof  that  the  testator  had  declared  Wills,  9,  Sword's  note;  66  Me.  360. 
his  intention   at  other  times  to   pro-  1.  Jackson  v.  Alsop,  67  Conn.  249, 

vide  for  the  claimant,  to  establish  her  34  A.   1106,  citing  9  CI.  &  Fin.   355,. 

761 


§    581  LAW    OF     WILLS.  [pART    VI. 

§  581.  Latent  and  Patent  Ambiguities  in  this  Connection. 

Much  has  been  said  of  latent  and  patent  ambiguities  in  this  con- 
nection; an  expression  borrowed  from  Lord  Bacon,  whose  oft- 
quoted  canon,  though  Wigram  and  Jarman  have  disputed  it,^  the 
courts  do  not  seem  quite  ready  to  discard.  This  canon  regards  am- 
big-uities  of  words  as  of  two  sorts, — patent  and  latent ;  the  one 
where  the  instrument  appears  ambiguous,  the  other  where  collat- 
eral matter  out  of  the  instrument  breeds  the  ambiguity,  since  the 
instrument  on  its  face  appears  certain  enough.^  In  a  patent  am- 
biguity the  written  instrument,  or  higher  proof,  cannot  be  mingled 
in  proof  with  the  lower  or  oral,  and  must  be  construed  by  its  own 
terms;  but  a  latent  ambiguity  (which  in  truth  grows  out  of  the 
application  of  the  languag-e  to  facts  and  circumstances)  is  raised 
by  matters  parol,  and  hence  may  be  fairly  removed  by  the  same 
means. ^  But,  applying  this  rule  to  a  will,  we  shall  presently  find 
that  writings  of  that  character,  which  would  be  ambiguous  (or 
rather  uncertain)  on  their  face  without  oral  explanation,  admit 
often  of  such  explanatory  proof  to  make  their  meaning  obvious ; 
while,  on  the  other  hand,  as  we  have  just  seen,  the  latent  ambiguity 
may  indeed  be  aided,  but  whether  alike  by  merely  explanatory 
proof,  or  by  direct  proof  of  intention,  is  another  matter.  And, 
again,  by  ambiguity  the  idea  is  conveyed  that  words  are  capable 
of  more  senses  than  one;  but  the  use  of  extrinsic  evidence  must  be 
taken  in  a  broader  sense,  and  applied  where  the  instrument  points 
at  no  certain  intention  at  all,  where  it  is  insensible,  so  to  speak, 
unless  this  borrowed  light  is  thrown  upon  it.  The  argument,  more- 
over, derived  from  mingling  proof  of  the  higher  and  lower  or  equal 
quality  is  rather  fanciful  and  misleading  for  employment  in  our 
age,  antedating,  as  it  does,  the  legislation  of  the  last  two  centuries, 

525 ;    §   587.     See  Grace  v.  Perry,  95  intention   are   treated   here  with   dis- 

S.  W.  875,  197  Mo.  550;   Cheadle  Re,  favor.     146  S.  W.  211;   160  111.  App. 

(1900)  2  Ch.  620  (limited  as  to  direct  483. 

proof)  ;  98  N.  E.  218,  254  111.  39;  147  2.  Wigram  Wills,  pi.  196;   1  Jarm. 

S.  W.  431,  148  Ky.  711;    134  N.   W.  Wills,  429,  430. 

1018,  168  Mich.  642.  3.  lb.;   Bac.  Maxims,  rule  23. 

Declarations  of  the  testator  as  to  4.  lb. 

762 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    582 

which  inspires  our  modern  policy  of  written,  signed,  and  attested 
wills.  Lord  Bacon's  illustrations  were  good,  but  practice  carried 
the  force  of  his  rule  beyond  his  own  examples;  and  his  distinction 
of  patent  and  latent,  though  convenient  in  some  respects,  can  hardly 
serve  as  a  criterion.^  For,  in  every  case,  as  Mr.  Jarman  has  truly 
observed,  the  judge  by  whom  a  will  is  to  be  expounded  is  entitled 
to  be  placed,  by  a  knowledge  of  all  the  material  facts  of  the  case, 
as  nearly  as  possible  in  the  situation  of  the  testator  when  he  wrote 
it.« 

§  582.  Extrinsic    Proof    of    Custom    and    Usage;    Deciphering, 
Translating,  etc. 

Since  all  writings  are  insensibly  colored  by  the  manners,  ideas, 
and  institutions  of  the  age  which  produces  them,  parol  evidence 
is  admissible  of  particular  customs  and  usages,  whenever  the  na- 
ture of  the  case  demands  such  knowledge  in  order  that  the  will  may 
be  correctly  interpreted.^ 

Where,  again,  the  will  is  written  in  characters  not  easy  to  de- 
cipher, or  in  a  language  which  the  court  does  not  understand,  the 
evidence  of  persons  skilled  in  deciphering  or  translating  is  admis- 
sible to  aid  the  sense  of  the  testator's  own  expression.^ 

On  the  same  principle,  any  obscure  terms  common  to  a  calling 
with  which  the  testator  was  familiar,  or  his  shorthand,  cipher,  or 
other  peculiar  modes  of  expression,  may  be  explained  by  the  evi- 
dence of  others  competent  to  enlighten  the  court,  and  his  symbolic 
writing  thus  reduced  to  its  rational  and  consistent  meaning.^ 

5.  See  Wigrarn  Wills,  pi.  196-210,  Wigram  Wills,  pi.  94;  King  v.  Mas- 
where  some  of  the  above  objections  hiter,  6  Ad.  &  E.  153.  The  rule  is  the 
are  stated  and  others  adduced.  same  as  applied  to  other  instruments 

6.  1  Jarm.  Wills,  430.  And  see  e.  g.,  in  writing.  2  Phil.  Ev.  c.  7,  §  3,  9th 
99  N.  W.  252,  71  Neb.  563;  Williams      ed. 

V.   Williams,    59   N.   E.   966,    189   111.  8.  Wigram  Wills,  pi.  56 ;  Norman  v. 

500;  72  S.  W.  694,  24  Ky.  Law,  2031;  Morrell,  4  Ves.  796;  9  CI.  &  Fin.  502; 

Karsten  v.  Karsten,  98  N.  E.  947,  254  1  Jarm.  Wills,  421. 

111.  480.  9.    Thus    in   Kell   v.    Chambers,    23 

7. /SMpro,  §  469;  1  Jarm.  Wills,  421;  Beav.    195,    the    testator,    a    jeweller, 

763 


§    583  -LAW    OF    "WILLS.  [PAET    VI. 

§  583.  Misnomer,  Nickname,  etc.,  corrected;  Subject  or  Object 
of  Gift,  Executor,  etc.,  identified. 

Illustrations  of  the  preceding  principles  may  be  multiplied,  as 
in  the  ease  of  a  misnomer,  or  nickname.  A  strong  reason  for  ad- 
mitting extrinsic  proof  of  an  explanatory  sort  in  these  exceptional 
instances  of  doubtful  description  is,  that  otherwise  the  gift  must 
fail  for  want  of  a  sufficient  subject  or  object;  that  absurdity  or 
nullity  is  the  inevitable  outcome  of  non-admission.  A  testator  who 
has  taken  the  pains  to  express  his  last  wishes  in  writing,  most  prob- 
ably meant  something;  and  to  conclude  that  he  intended  a  pro- 
vision illegal  or  inoperative  is  more  natural  than  to  conclude  that 
he  intended  nothing  at  all.  Hence,  the  anxiety  of  our  courts  to 
discern  a  rational  meaning,  if  they  can,  in  what  the  will  bestows, 
rather  than  pronounce  the  disposition  void  for  uncertainty,  where 
any  proof,  not  open  to  the  fundamental  objection  against  disput- 
ing solemn  instruments  in  writing  by  parol  evidence,  is  available. 
In  various  ways  does  this  desire  to  give  the  instrument  a  consistent 
meaning  influence  the  decisions.  As,  for  instance,  in  treating  a 
residuary  devise  of  all  the  testator's  real  estate  as  carrying  a  power 
to  appoint  real  estate  where  the  testator  had  such  a  power  but  no 
real  estate  at  all.^  So,  too,  under  the'  general  rules  of  constniction, 
in  holding  to  no  presumed  intention,  but  overturning  the  presump- 
tion wherever  it  appears  that  unless  the  testator  meant  differently 
his  gift  amounted  to  nothing." 

In  various  instances  courts  have,  moreover,  saved  a  devise  or 

used   the   private   price-marks   of   his  ten  in  cipher  or  in  a  foreign  language, 

business ;  and  the  letters  "  ixx  "  were  Tlie   habits   of   the   testator   in   these 

explained  to  mean  £100.  particulars  must  be  receivable  as  evi- 

"  The  testator  may  have  habitually  dence  to  explain  the  meaning  of  his 

called  certain  persons  or  things  by  pe-  will."     Lord  Abinger,  in  Hiscocks  v. 

culiar  names,  by  which  they  were  not  Hiscocks,  5  M.  &  W.  363. 

commonly    known.      If    these    names  See  also  Blair  v.  Seribner,  67  N.  J. 

should  occur  in   his  will,   they  could  Eq.  583,  591,  60  A.  211,  356;  Karsten 

only   be  explained   and   construed   by  v.  Karsten,  98  N.  E.  947,  254  111.  480. 

the  aid  of  extrinsic  evidence  to  show  1.  Standen   v.   Standen,  2   Ves.  Jr. 

the  sense  in  which  he  used  them,   in  589. 
like  manner  as  if  his  will  were  writ- 

764 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    583 

legacy  from  failure  by  admitting,  if  not  direct  proof  of  intention, 
at  least  evidence  of  the  extrinsic  sort  which  bears  in  that  direction, 
though  literally  explanatory  of  the  testator's  situation  and  circum- 
stances, and  with  the  avowed  object  of  identifying  rather  the  sub- 
ject or  object  of  the  gift.  The  court  interprets  by  the  testator's 
familiar  symbols,  his  habitual  though  perhaps  obscure,  imperfect, 
or  inaccurate  modes  of  expression.  Thus,  the  mere  misnomer  of  a 
legate©  or  devisee  does  not  render  the  gift  void,  if  from  the  context 
of  the  will  or  poof  of  the  admissible  sort  dehors  the  instrument  it 
can  be  ascertained  who  was  actually  intended.^  Persons  designated 
by  their  nicknames,  too,  or  by  words  of  misdescription  originating 
in  some  nickname,  or  by  their  popular  names,  or  by  some  familiar 
term  of  endearment,  may  also  be  identified.*  So,  too,  may  a  name 
assumed  or  gained  by  reputation,  though  not  strictly  appropriate, 
amount  to  a  sufficient  description  of  the  person  intended.^  Xor 
need  a  legatee  be  expressly  named  at  all  if  oral  proof  of  identity 
serves  to  connect  him  with  the  gift  which  the  will  expresses.® 

Extrinsic  evidence  of  facts  and  circumstances  may  clear  a  doubt- 
ful bequest  to  some  society  or  corporation,  especially  a  charitable 
one,  whose  name  is  not  well  described,  thus  identifying  the  proper 
recipient  of  the  bounty.^     So,  too,  with  the  thing  which  is  given, 

2.  See  c.  2  passim,  where  this  idea  6.  Cheney  v.  Selnian,  71  Ga.  384. 
constantly  changes  the  prima  facie  Thus,  in  a  gift  to  "members  of  my 
construction.  family,"  or  the  "children  of  A."  lb.; 

3.  1  Jarm.  Wills,  380-383;  Amb.  Hill  v.  Bowman,  7  Leigh,  650;  Den- 
175;  6  Ves.  42;  19  Ves.  381;  Cook  nis  v.  Holsapple,  148  Ind.  297,  62  Am. 
V.  Danvers,  7  East,  299;  Smith  v.  St.  Rep.  526,  46  L.  R.  A.  168,  47  N. 
Smith,  4  Paige,  271;  Taylor  v.  Tolen,  E.  631. 

38  N.  J.  Eq.  91;   42  N.  J.  Eq.  43;    6  7.  Kilvert's  Trusts,  L.  R.  7  Ch.  170; 

A.    2i80;    Gordon   v.    Burris,   141   Mo.  Hinckley  v.  Thatcher,  139  Mass.  477, 

602,  43  S.  W.  642.  52    Am     Rep.    719,    1    N.    E.    840;    3 

4.  Lee  v.  Pain,  4  Hare,  251 ;  Sutton  Demarest,  516 ;  49  Me.  288 ;  66  Me. 
V.  Cole,  3  Pick.  232;  Beatty  v.  Uni-  100;  Straw  v.  East  Maine  Conference, 
versalist  Society,  39  N.  J.  Eq.  452.  67   Me.   493;    7   Met.   416;    Gilmer   v. 

5.  Hob.  32;  Queen's  CoUega  v.  Sut-  Stone,  120  U.  S.  586,  30  L.  Ed.  734; 
ton,  12  Sim.  551;  Taml.  316;  Ver-  Smith  v.  Kimball,  62  N.  H.  606; 
mont  Baptist  Convention  v.  Ladd,  59  Reilly  v.  Prott?tant  Infirmary,  87 
Vt.  5,  9  A.  1.  Md.  664,  40  A.  894;  HoUoway  v.  In- 

765 


583 


LAW     OF     WILLS. 


[PAET    VI. 


evidence  of  the  circumstances  may  serve  to  identify  the  property 
and  save  the  gift;  as  where,  for  instance,  a  certain  section  of  land 
is  devised  without  mention  of  the  state  or  county.^  Nor  is  the 
popular  and  reputed  locality  of  the  gift  or  that  familiar  to  the 
testator  to  be  controlled  by  proof  that  his  description  was  not  liter- 
ally correct.^  A  debt  referred  to  in  a  will  as  "  N's  debt,"  may  be 
identified  by  extraneous  evidence  as  one  which  the  testator  thus 
styled  but  which  was  really  the  debt  of  another  for  whom  N  acted 
as  agent' 

In  short,  whatever  devise  or  bequest  may  possibly  be  reduced 
to  a  certainty,  or  in  substance  identified  as  it  was  meant,  without 
violating  a  cardinal  rule  of  evidence,  will  be  upheld.^  And  in  such 
cases  the  careless  and  unskillful  testator  who  draws  his  own  will 
without  competent  advice  finds  bountiful  indulgence  from  the 
courts ;  his  written  expressions  being  smoothed  out,  words  which 
he  left  out  or  misapplied  being  supplied  or  read  correctly,  and  the 


stitute,  87  A.  269,  119  Md.  667;  9S 
Ky.  349,  33  S.  W.  86;  Dennis  v. 
Holsapple,  supra;  69  Conn.  416,  38 
A.  219. 

8.  Black  V.  Richards,  95  Ind.  184. 
See  Wood  v.  Hammond,  16  R.  I.  98, 
17  A.  324;  91  Iowa,  54,  26  L  R.  A. 
370,  58  N.  W.  1093 ;  McLeod  v.  Jones, 
74  S.  E.  733,  159  N.  C.  74;  Heywood 
V.  Heywood,  137  N.  W.  984,  92  Neb. 
72;  125  P.  974,  69  Wash.  456;  Glover 
V.  Baker,  83  A.  916,  76  N.  H.  393; 
100  N.  E.  57,  213  Mass    117. 

9.  Anstoe  v.  Nelms,  1  H.  &  N.  225; 
§  575. 

1.  Scott  V.  Neeves,  77  Wis    305. 

2.  Upon  the  general  subject  of  un- 
certainty in  a  gift,  see  next  c. 

See  supra,  §§  516-518.  A  mistake 
in  the  locality  of  lands  devised  may 
often  be  aided  by  words  of  reference 
to  occupancy,  and  vice  versa,  or  oth'r 
identifying     terms.      1    Jarin.    Will.'*, 


377;  1  Ld.  Raym.  728.  And  so,  too, 
where  leasehold  is  described  as  free- 
hold, etc.  Scrupulous  exactness  of 
description  is  not  needful,  if  ideiit'.ty 
under  the  will  can  oe  safely  estab- 
lished, despite  all  error  or  imperfec- 
tion in  the  will's  expression.  "  Ver- 
itas nominis  tollit  errorem  demon- 
strationis;"  that  is  to  say,  where  some 
one  answers  the  name,  it  is  imma- 
terial tliat  a  further  description  does 
not  precisely  apply.  See  1  Jarm. 
Wills,  379;  2  Ves.  Jr.  589.  On  the 
other  hand,  "  nihil  facit  error  nominis 
cum  de  corpore  constat."  Asten  v. 
Asten,  (1S94)  3  Ch.  260,  appears  to 
go  far  in  declaring  void  a  devise  of 
newly-built  houses,  not  numbered ;  for 
in  case  of  a  block  of  such  liouses  sep- 
arately devised,  it  seems  fair  to  treat 
such  devisees  as  tenants  in  common 
of  the  whole  block.     Cf.  §§  517,  518. 


766 


CHAP.    III.]  EXTEINSIC    EVIDENCE.  §    584 

main  intention  gathered  and  carried  out  if  possible.'  "WTic^rever, 
in  fine,  there  remains  no  reasonable  doubt  as  to  the  person  or  thing 
intended  to  be  described,  upon  due  investigation,  the  gift  will  not 
be  disappointed ;  and  thus  may  a  gift  be  sustained,  though  in  point 
of  fact  no  beneficiary  answered  to  the  literal  expression  of  the  will.* 
Where  there  is  ambiguity  as  to  the  identity  of  the  executor  or 
trustee  named  in  the  will,  extrinsic  evidence  is  under  the  same  gen- 
eral principle  admissible  to  identify.^ 

§  584.  Blank  in  a  Will:   Omitted  Gift  not  Inserted. 

\Yhere  a  complete  blank  is  left  in  the  will  for  the  name  of  a  lega- 
tee or  devisee,  no  parol  evidence,  however  strong,  is  competent  to 
fill  it  up ;  ®  and  the  principle  appears  to  be  the  same  where  the 
blank  relates  to  the  subject  or  thing  bequeathed  or  devised.     To 

give  "  to $1000  "  leaves,  therefore,  no  one  who  can  claim  the 

legacy ;  and  to  give  "  to  AB^ "  leaves  nothing  to  be  claimed  as 

a  legacy ;  and  in  either  case  the  testator  likely  enough  had  never  re- 
solved upon  a  gift  definitely,  though  turning  it  over  in  his  mind,  as 
to  the  subject  or  object.'' 

But  partial  blanks  may,  in  a  suitable  case,  be  supplied  in  con- 
struction, not,  perhaps,  by  direct  parol  evidence  of  what  the  testa- 
tor intended,  but,  at  all  events,  where  the  context,  with  or  without 
the  aid  of  extrinsic  circumstances,  supplies  a  definite  thing  or 
person,  and  renders  the  will  sensible.  Thus,  a  legacy  to  "  Mr.  B," 
or  to  "John,"  or  to  "  Browm,"  might  be  identified ;  *  and  so,  too, 
where  one  legacy  of  $500  was  given  to  A,  and  another  of  $700  to 
B,  a  third  legacy  of  ''  600  "  to  C  might  well  be  supposed  to  mean 
six  hundred  dollars.     Upon  partial  blanks,  on   the  other  hand, 

3.  Lytle  v.  Beveridge,  58  N.  Y.  592.  7.  Miller  v.  Travers,  supra;  2  Atk. 

4.  Debentures  of  a  company  may  239;  Taylor  v.  Richardson,  2  Drew, 
thus  pass  under  a  misdescribed  be-  10;  1  Jarm.  Wills,  441;  Dreyer  v. 
quest  of  "stock."     (1896)   2  Ch.  364.  Reisman,  9G  N.  E.  90,  202  N.  Y.  47S. 

5.  Chappell's  Goods,  (1894)  P.  98;  8.  See  3  Ves.  148;  De  Rosaz  Re,  3 
(1892)    P.  83.  P.  D.  66. 

6.  Hunt  V.  Hart,  3  Bro.  C.  C.  311. 
See  next  c. 

767 


§  585  lAW   or   WILLS.  [past  vl, 

wliich  leave  the  sense  defective,  no  valid  gift  can  be  based.*  And 
if,  besides  a  blank,  there  is  an  uncertain  description,  the  will  be- 
comes doubly  inoperative/ 

Moreover,  a  devise  or  bequest,  wholly  omitted  by  mistake,  is  not 
to  be  inserted  in  a  will ;  ^  yet  some  partial  omission  might  not  ex- 
clude a  sensible  construction  of  the  gift,  with  the  aid  of  extrinsic 
circumstances. 

§  585.  Devise  or  Bequest  to  Children,  Wife,  etc. 

Inasmuch  as  a  gift  need  not  be  to  persons  by  name  whose  iden- 
tity can  be  established,  a  gift  to  the  "  children  of  A"  sufficiently 
describes  them.^  And  the  word  "  children  "  has  its  own  natural 
interpretation ;  *  so  that  the  proof  of  intent  dehors  the  will  is  in- 
admissible to  show  that  a  will  thus  plainly  expressed  was  meant  to 
signify  sons  and  to  exclude  the  daughters,^  or  vice  versa.  As  to 
omitting  the  name  of  one's  own  child  from  his  will,  various  enact- 
ments are  found  in  our  local  codes,  whose  policy  upholds  more  or 
less  conclusively  the  right  of  such  child  to  take  his  share  in  the  es^ 
tate.®  Evidence  dehors  the  will  that  the  testator  intended  the 
omission  and  meant  in  fact  to  disinherit  the  child  cannot,  under 
some  of  these  enactments,  be  received  at  all ;  ^  but  other  statutes 
permit  such  parol  proof  to  be  offered  so  as  to  repel  the  inference 
from  the  will  that  the  omission  was  accidental ;  excluding  neither 
direct  nor  indirect  evidence  upon  this  point.^ 

9.  Mason  v.  Bateson,  26  Beav.  404.  will    insensible    and    absurd.      A    col- 

1.  Traylor's  Estate,  81  Cal.  9,  15  lateral  legitimate  relative  is  not  to  be 
Am.  St.  Rep.  17,  22  P.  297;  §  592.  supplanted  by  an  illeojitimate  one, 
See  Gill  v.  Gill,  P  (1909)  157:  Hub-  upon  mere  extrinsic  proof  of  intent, 
buck's  Estate,  P    (1905)    129.  (1894)    2    Ch.    83. 

2.  Nevvburgh's  Case,  5  Madd.  364.  5.  Weatherhead  v.  Baskerville,  11 
And  see  supra,  §§   216-219.  How.  329. 

3.  Cheney  v.  Selman,  71  Ga.  584.  6.  Supra,  §§  20.  480. 

4.  Supra,  §  533,  where  the  primary  7.  Garraud's  Estate,  35  Cal.  336. 
and  secondary  meanings  of  this  word  8.  See  Lorings  v.  Marsh,  6  Wall, 
are  stated.  Such  words  as  "son,"  337,  18  L.  Ed.  802;  Buckley  v.  Ger- 
"  child,"  "daughter,"  etc.,  must  usu-  ard,  123  Mass.  8;  3  Gray.  367;  106 
ally  be  construed  in  the  primary  Mass.  320 ;  5  Iowa,  196 .  63  Am.  Dec. 
sense,    unless    that    would    make    the  696 

768 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    586 

In  accordance  with  one's  apparent  intent,  the  designation  "  my 
wife  "  in  a  will  may  be  shown  to  mean  by  extrinsic  evidence  the 
person  with  whom  the  testator  lived  and  whom  he  held  out  as  his 
wife  as  against  a  lawful  wife  long  separated  from  him.^ 

§  586.  Parol  Evidence  to  prove  or  repel  a  Resulting  Trust. 

Courts  of  equity  have  in  some  instances  admitted  parol  evidence 
not  only  in  the  cases  of  fraud  and  error  elsewhere  considered/ 
but  so  as  to  establish  or  repel  a  resulting  trust.  Thus,  where  a  de- 
vise or  bequest  is  procured  from  the  testator  upon  a  promise  to 
hold  all  or  part  for  some  third  person  whom  the  testator  desires 
to  benefit,  a  trust  arises  which  equity  will  enforce.  The  ground  of 
such  enforcement  is  not  so  much  the  promise  as  the  transfer  of 
property  upon  the  faith  of  that  inducement  and  with  that  benefit 
in  view.  On  the  ground  that  fraud  has  been  committed  on  the 
beneficiary,  by  not  carrying  out  the  terms  of  the  transfer  as  mutu- 
ally intended  and  understood,  equity  interferes  to  declare  and  pro- 
tect the  trust;  and  this  with  equal  zeal,  it  would  appear,  whether 
the  gift  related  to  real  estate  or  personalty,  and  indeed  whether  the 
instrument  of  gift  was  testamentary  or  only  inter  vivos.  The  trust 
if  denied  may  be  proved  by  parol  evidence ;  for  as  the  written  in- 
strument is  not  thereby  disputed,  but  is  shown  to  have  involved  a 
transfer  upon  some  external  inducement,  there  is,  it  is  ruled,  no 
transgression  of  the  Statute  of  Frauds  by  offering  this  proof.^  So, 
too,  on  the  other  hand,  parol  evidence  dehors  the  will  may  be  ad- 
duced to  repel  any  such  resulting  trust ;  no  such  trust,  of  course, 
being  expressed  in  the  will  or  instrument  of  gift,  but  its  effect  being 

9.  Pastene  v.  Bonini,  166  Mass  85,  R.  4  H.  L.  82.  Cf.  Wolford  v.  Her- 
44  N.  E.  246.  rington,  74  Penn.  St.  311,  15  Am.  Rep. 

1.  Supra,  §§  216-220,  223,  248.  548.      An    English    instance    cited    by 

2.  1  Jarm.  \Yills,  415,  and  Bige-  Mr.  Jarman  (1  Jarm.  416)  is  where 
low's  note;  Russell  v.  Jackson,  10  the  father  devises  to  the  youngest 
Hare,  206;  Jones  v.  Badley,  L.  R.  3  son,  who  promises  as  an  inducement 
Ch.  362;  9  Ves.  519;  Glass  v.  Hul-  to  this  devise  to  pay  £10,000  to  the 
bert,  102  Mass.  24.  3  Am.  Rep.  418;  eldest  son. 

Hooker  v.  Axford,   33   Mich.   453;    L. 

49  769 


§    588  LAW    OF    WILLS.  [PAET    VL 

to  sustain  the  legal  title  of  donee,  devisee  or  legatee  against  a  naked 
equity  which  is  raised  by  legal  implication.^ 

§  587.  Effect  of  Language  in  Will  not  to  be  varied. 

The  plain  effect  of  the  language  used  in  the  will  is  not  to  be 
varied  by  external  proof  of  what  effect  was  really  intended.  Parol 
evidence  may  indeed  be  resorted  to  for  the  purpose  of  making 
something  intelligible  in  the  will  which  cannot  without  its  aid  be 
understood  or  for  resolving  a  doubtful  interpretation;  but  if  the 
language  of  the  will  in  point  of  legal  construction  requires  one  in- 
terpretation, and  can  be  understood  in  that  sense,  evidence  of  in- 
tention cannot  be  adduced  to  give  it  another  and  a  different  inter- 
pretation.* 

§  588.  General  Summary;  Failure  of  Gift  Notwithstanding  Ex- 
trinsic Evidence. 
We  have  assumed  throughout  this  discussion,  that  the  extrinsic 
evidence  admitted,  in  the  foregoing  cases,  of  whatever  kind, 
whether  directly  or  indirectly  bearing  upon  the  testator's  actual 
intent,  has  been  received,  if  at  all,  simply  as  ancillary  and  subor- 
dinate to  the  purpose  disclosed  in  the  written  will,  in  order  to  aid 
a  doubtful  interpretation,  and  not  so  as  to  materially  qualify  or 
contradict  the  instrument  or  interpolate  a  testamentary  gift  which 
its  own  tenor  did  not  justify.  And  were  the  question  an  open  one 
in  the  courts  and  not  already  closed  to  argument,  we  should  incline 
to  contend  that  in  the  foregoing  distinction  is  the  real  root  of  the 
matter,  rather  than  in  attempting  to  define  positively  between  the 
admission  or  non-admission  of  direct  proof  of  intention  as  against 

3.  1  Jarm.  Wills,  416,  and  Bige-  95  Ga.  699,  22  S.  E.  712;  Forbes  v. 
low's  note;  2  Story  Eq.  Jur.  §  1202;  Darling,  94  Mich.  621,  54  N.  W.  385. 
Cas.  t.  Talb.  79;  9  Ves.  519.  Extrinsic  evidence  is  admissible  in 

4.  Wigram  Wills,  pi.  125;  King  v.  the  probate  to  show  that  a  gift  by 
Badfley,  3  My.  &  K.  417;  Clcmcntson  deed  poll  duly  executed  was  intended 
V.  Gandy,  1  Keen,  309;  Wilkins  v.  as  a  will.  Slinn's  Goods,  15  P.  D. 
Allen,   18   How.    385,    15   L.    Ed.   396;  156. 

8upra,  §§   578,   580;    Erwin  v.   Smith, 

770 


CHAP.    III.]  EXTRINSIC    EVIDENCE.  §    588 

indirect  proof  of  extrinsic  facts  and  circumstances ;  for  whether 
direct  or  indirect  in  bearing,  all  such  proof  is  explanatory  ra«;rely, 
under  the  limitations  of  our  distinction,  and  all  tends  in  the  same 
direction,  namely,  to  bring  extrinsic  evidence  to  bear  upon  the 
will,  as  to  what  the  testator  intended,  when  the  will  cannot  shine 
by  its  own  light  unaided.  Indeed,  in  some  of  the  United  States 
precedents  are  not  conclusive  against  such  a  view.  But  the  Eng- 
lish rule,  at  all  events,  for  the  present  or  permanently,  draws  the 
line  at  uncertainty  as  between  two  or  more  subjects  or  objects  and 
beyond  this  allows  no  direct  extraneous  proof  of  what  was  in- 
tended,^ while  American  courts  still  waver  about  extending  the 
lines  to  other  instanecs  of  an  uncertain  gift.^  All  tribunals  agree, 
howeveT,  in  aiding  the  will  by  extrinsic  proof  of  facts  and  circum- 
stances, and  thereby  resolving,  if  possible,  whatever  must  otherwise 
remain  ambiguous  or  insensible  as  the  written  instrument  stands. 
And  one  can  well  appreciate  the  good  policy,  if  not  the  logic,  of 
holding  in  check  that  bold,  glaring  sort  of  testimony  which  consists 
in  rough  drafts,  instructions  for  a  will,  hearsay  declarations  of 
what  the  testator  intended,  the  scrivener's  confessions,  and  the 
like,  whose  sure  tendency  is  to  prove  too  much,  to  set  an  oral  will 
by  the  side  of  a  written  and  executed  one ;  and  hence  to  illuminate 
the  will  itself  and  the  testator's  meaning  rather  by  that  softer  radi- 
ance which  collateral  facts  and  circumstances  may  shed. 

Doubt  and  uncertainty  may  grow  out  of  the  thing  described  as 
given,  or  the  person  or  object  that  shall  take,  or  the  language  which 
imports  the  gift.  Whatever  the  element  or  elements  of  uncertainty 
or  senselessness,  it  is  a  rule  that,  where  the  words  of  the  will  itself, 
aided  by  extrinsic  evidence  of  the  material  facts  and  circumstances, 
and  by  such  direct  proof  of  intent  dehors  the  instrument  as  courts 
pronounce  admissible,  are  found  insufficient  to  determine  the  tes- 
tator's meaning,  the  gift,  the  testamentary  provision,  will  be  void 
for  uncertainty.^ 

5.  Supra,  §  575.  cases  cited;    1  Jarm.   Wills,   382:    15 

6.  lb.  Sim.  626;   36  Iowa,  674,  14  Am.  Rep. 

7.  Wigram  Wills,  pi.  105-129,  and      538;    55    111.    514,    8    Am.    Rep.    665; 

771 


§    590  LAW    OF    WILLS.  [pAKT    VL 

§  589.  General  Summary;  Extrinsic  Evidence  always  Admissi- 
ble to  aid  in  Right  Interpretation. 

Conversely,  we  are  to  conclude  that  a  court  may  inquire  into 
every  material  fact  and  circumstance  dehors  the  will  for  the  pur- 
pose of  determining  the  object  of  a  testator's  bounty,  or  the  sub- 
ject of  disposition,  or  the  quantity  of  interest  intended  to  be  given 
by  the  will  in  controversy.*  And  the  same  holds  true  of  every  other 
disputed  point  respecting  which  it  can  be  shown  that  in  any  way 
a  knowledge  of  extrinsic  facts  will  throw  more  light  upon  the  tes- 
tator's meaning.^  In  short,  extrinsic  evidence  of  attending  facts 
and  circumstances  as  to  one's  family  relations,  his  property,  his 
affairs,  and  the  like, — indeed,  of  whatever  was  likely  to  have  in- 
fluenced the  disposition  as  it  appears, — is  always  admissible  for 
placing  the  court  at  the  testator's  point  of  view  when  he  made  the 
will,  and  thereby  aiding  a  right  interpretation  of  the  instrument. 

As  a  bound,  however,  to  all  such  extraneous  investigation  by  a 
court  of  construction,  we  may  say  once  more  that  whenever  the  will 
discloses  a  clear  purpose  upon  its  face,  neither  the  situation  of  the 
testator,  nor  that  of  his  family  or  property,  nor  any  other  outside 
facts  or  circumstances  can  properly  be  considered  in  giving  effect 
to  the  will.^  And  certainly  where  doubt  may  be  fairly  solved  by 
careful  recourse  to  the  context,  and  by  bringing  all  parts  of  the  will 
together,  it  is  better  not  to  travel  outside  the  instrument  at  all.^ 

§  590.  Sir  James  Wigram's  Propositions  stated. 

The  seven  propositions  of  Sir  James  Wigram  are  so  generally 
used  by  the  courts  as  canons  of  construction,  and  have    moulded 

Traylor's   Estate,   Re,   81    Cal.   9,-15      &  F.  556;   6  H.  L.  Cas.  106;   Innes  v. 

Am.  St.  Rep.   17,  22   P.   297;   no.xt  c.      Sayer,  3  M.  &  G.  606. 

As  where  the  gift  is  to  the  cTfildren  of  9.    Supra,    §§    582,    583;     Wigram 

a  deceased  person  named  B.  and  there      Wills,  pi.  58. 

were  three  deceased   persons  of  that  1.   Brearley   v.   Brearley,    1    Stockt. 

•"me.     Stephenson  Re,    (1897)    1  Ch.       (N.  J.)   21;  supra,  §§  468,  568. 

2.    See    88    A.    372,   N.   J.    Eq.    3D1 

8.    Supra,    §§    579,    580;     Wigram       (family  understanding  as  to  a  proper 

Wills,  pi.  58;   Shore  v.  Wilson,  9  CI.      construction      cannot      control      the 

court) . 

772 


CHAP. 


III.] 


EXTKINSIC    EVIDENCE. 


590 


English  precedents  so  greatly,  that,  without  further  criticism  of 
their  merits,  we  subjoin  them  at  length  for  the  convenience  of  the 
reader.^ 


3.  Seven  propositions  are  applicable 
to  the  construction  of  wills.  Wigram 
on  Wills,  pi.  12-19.— (I.)  A  testator  is 
always  presumed  to  use  the  words  in 
which  he  expresses  himself,  accord- 
ing to  their  strict  and  primary  ac- 
ceptation, unless,  from  the  context 
of  the  will,  it  appears  that  he  has  used 
them  in  a  diflferont  sense,  in  which 
case  the  sense  in  which  he  thus  ap- 
pears to  have  used  them  will  be  the 
sense  in  which  they  are  to  be  con- 
strued. 

(II.)  Where  there  is  nothing  in  the 
context  of  a  will  from  which  it  is 
apparent  that  a  testator  has  used  the 
words  in  which  he  has  expressed  him- 
self in  any  other  than  their  strict 
and  primary  sense,  and  where  his 
words  so  interpreted  are  sensible  with 
reference  to  extrinsic  circumstances, 
it  is  an  inflexible  rule  of  construction, 
that  the  words  of  the  will  shall  be 
interpreted  in  their  strict  and  pri- 
mary sense,  and  in  no  other,  although 
they  may  be  capable  of  some  popular 
or  secondary  interpretation,  and  al- 
though the  most  conclusive  evidence 
of  intention  to  use  them  in  such  pop- 
ular or  secondary  sense  be  tendered. 

(III.)  Where  there  is  nothing  in 
the  context  of  a  will  from  which  it  is 
apparent  that  a  testator  has  used  the 
"words  in  which  he  has  expressed  him- 
self in  any  other  than  their  strict  and 
primary  sense,  but  his  words,  so  in- 
terpreted, are  insensible  with  refer- 
ence to  extrinsic  circumstances,  a 
court  of  law  may  look  into  the  extrin- 
sic circumstances  of  the  case,  to  see 
whether  the  meaning  of  the  words  be 


sensible  in  any  popular  or  secondary 
sense,  of  which,  loith  reference  to 
these  circumstances,  they  are  capable. 

(IV.)  Where  the  characters  in 
which  a  will  is  written  are  difficult 
to  be  deciphered,  or  the  language  of 
the  will  is  not  understood  by  the 
court,  the  evidence  of  persons  skilled 
in  deciphering  writing,  or  who  under- 
stand the  language  in  which  the  will 
is  written,  is  admissible  to  declare 
Avhat  the  characters  are,  or  to  in- 
form the  court  of  the  proper  meaning 
of  the  words. 

(V.)  For  the  purpose  of  determin- 
ing the  object  of  a  testator's  bounty, 
or  the  subject  of  disposition,  or  the 
quantity  of  interest  intended  to  be 
given  by  his  will,  a  court  may  inquire 
into  every  material  fact  relating  to 
the  person  who  claims  to  be  inter- 
ested under  the  will,  and  to  the  prop- 
erty which  is  claimed  as  the  subject 
of  disposition,  and  to  the  circum- 
stances of  the  testator  and  of  his 
family  and  affairs,  for  the  purpose  of 
enabling  the  court  to  identify  the  per- 
son or  thing  intended  by  the  testator, 
or  to  determine  the  quantity  of  in- 
terest he  has  given  by  his  will. 

The  same  (it  is  conceived)  is  true 
of  every  other  disputed  point,  respect- 
ing which  it  can  be  shown  that  a 
knowledge  of  extrinsic  facts  can,  in 
any  way,  be  made  ancillary  to  the 
right  interpretation  of  a  testator's 
words. 

(VI.)  Where  the  words  of  a  will, 
aided  by  evidence  of  the  material  facts 
of  the  case,  are  insufficient  to  deter- 
mine the  testator's  meaning,  no  evi- 


773 


§    591  LAW     OF     WILLS.  [pART    VI. 

CHAPTER  IV. 

MISCELLANEOUS    PROVISIONS    CONSIDERED. 

§  591.  Gifts   sufficiently  or  insufficiently   Certain. 

In  this  final  chapter  we  shall  bring  together  some  miscellaneous 
matters  suggested  under  the  head  of  testamentary  construction  with 
which  the  preceding  chapters  have  not  fully  dealt.  And,  first,  to 
speak  in  general  of  gifts  under  a  will  which  are  sufficiently  or  in- 
sufficiently certain.  How  reluctant  are  our  courts  to  pronounce  a 
testamentary  provision  void  for  uncertainty  wherever  extrinsic 
proof  may  illumine  the  purpose  which  the  written  charter  of  his 
last  wishes  embodies,  and  reduce  the  doubt  to  reasonable  certainty, 
we  have  already  observed  ;  ^  how  sedulously,  too,  the  wishes  of  care- 
less and  unskillful  testators  who  have  drawn  their  own  wills  and 
bungled  into  awkward  and  erroneous  expressions  are  regarded ; 
with  what  tender  indulgence  the  instrument  of  post  mortem  disposi- 
tion will  be  carried  into  effect  by  construction,  provided  it  wholly 
fulfils  all  the  formal  conditions  which  are  indispensable  to  a  pro- 
bate. But  after  all  the  indulgence,  all  the  favorable  regard  possible, 
after  all  the  comparison  of  words  and  phrases,  after  the  long  search 
by  the  light  of  extrinsic  testimony  to  discover  in  the  gift  a  certain 
and  sensible  meaning,  the  court  may  still  be  left  in  impervious  dark- 
ness, and  the  will  fails  of  effect  in  consequence.   For  conjecture,  as 

dence  will  bo  admissible  to  prove  what  the  description  in  the  will  is  insuffi- 

the    testator    intended,    and    the    will  cient  for  the  purpose. 

{except  in  certain  special  cases,  see  These  cases   may   be   thus   defined: 

VII.)    will  be  void  for  uncertainty.  where     the     object     of     a     testator's 

(VII.)  Notwithstanding  the  rule  of  bounty,  or  the  subject  of  disposition 

law  which  makes  a  will  void  for  un-  (i.  e.,  the  person  or  thing  intended), 

certainty,  where  the  words,  aided  by  is  described   in  terms  which   are  ap- 

ovidence  of  the  material  facts  of  the  plicable  indifferently  to  more  than  one 

case,  are  insufficient  to  determine  tlie  person   or    thing,    evidence   is   admis- 

testator's  meaning,  courts  of  law,  in  sible  to  prove  wliich  of  the  persons  or 

certain   special  cases,  admit  extrinsic  things  so  described  was   intended  by 

evidence  of  intention  to  make  certain  the  testator, 

the  person  or   thing   intended,   where  1.   See  supra,    §§   572-590. 

774 


<3HAP.    IV.]       MISCELLANEOUS   TRO VISIONS   CONSIDERED.  §    592 

Mr.  Jarman  fitly  observes,  is  not  permitted  to  supply  what  the  tes- 
tator has  failed  to  indicate;  and  if,  after  every  endeavor,  the  judi- 
cial expositor  "  finds  himself  unable,  in  regard  to  any  material 
fact,  to  penetrate  through  the  obscurity  in  which  the  testator  has 
involved  his  intention,  the  failure  of  the  intended  disposition  is 
the  inevitable  consequence."  ^  ISTevertheless,  in  modern  times  the 
instances  of  failure  for  uncertainty  are  more  rare  than  formerly; 
partly  because  rules  of  construction  are  now  better  settled,  and 
partly,  no  doubt,  from  the  development  of  personal  wealth  in  our 
communities,  and  the  decay,  moreover,  of  that  ancient  subservience 
to  the  heir-at-law,  for  whose  sake  the  attempted  devise  of  lands 
was  so  often  frustrated  on  one  pretext  or  another.^ 

§  592.  Uncertainty  in  Subject  or  Object. 

As  we  have  already  intimated,*  a  gift  by  will  to  be  certain  re- 
quires a  definite  subject  and  object,  and  cannot  stand  if  either  be 
wanting,  though  to  identify  the  thing  given,  or  the  person  to  take, 
extrinsic  evidence  is  generously  admitted. 

As  to  the  subject  a  gift  of  "  all  "  was  in  an  early  case  pronounced 
too  indefinite ;  ^  but  whatever  imports  a  residuary  gift  may  be 
sustained  in  modern  times,  though  expressed  in  terms  scarcely  more 
specific.^  The  gift  of  "  some,"  or  of  an  indefinite  fund,  is  uncer- 
tain ;  ^  yet  the  motive  of  the  gift,  if  apparent,  may  reduce  this  to 
certainty  by  supplying  the  means  of  estimating  its  amount.^  It 
matters  much  whether  the  context  indicates,  in  such  cases,  that  im- 
portant words  are  left  out  or  that  the  gift  stands  instead,  as  finally 
and  completely,  though  informally,  expressed.^  TJncertainty,  how- 
ever, which  arises  from  two  repugnant  provisions  may  of  course  be 

2.  1  Jarm.  Wills,  356.  7.  2  P.  W.  387;   Jubber  v.  Jubber, 

3.  The  old  cases  of  uncertain  j?ift  9  Sim.  503;  Gray  Re,  36  Ch.  D.  205. 
are  of  little  value  as  precedents  at  8.  3  J.  &  Lat.  702;  10  Sim.  193:  1 
this  day.     1  Jarm.  357.  Jarm.    Wills,    358. 

4.  Svpra,  §§   572-588.  9.    See    Mohun   v.   Mohun,    cited    1 

5.  1  Lev.  130,  Sid.  191.  Jarm.   357. 

6.  1    Jarm.    Wills.    357,    358;    Bas- 
sett's  Estate,  L.  R.  14  Eq.  54. 

775 


§  592  TAyV     OF  WILLS.  [paKT  VI. 

reconciled  hj  the  usual  niles.^  The  gift  of  part  of  a  larger  quantity 
i^  not  uncertain  where  the  devisee  or  legatee  has  a  right  to  select;  ^ 
for  here  the  beneficiary  may  take  the  larger  part,  if  not  the  whole, 
and  it  is  only  the  gift  over  of  what  remains  that  proves  precarious ; 
and  even  this  latter  gift  will  be  sustained,  if  possible.^  The  gift 
of  what  remains  undisposed  of  may  indeed  be  often  repugnant  to 
the  first  gift,  or  too  nearly  so  to  vest  a  certain  right ;  nevertheless, 
a  gift  is  good  of  what  shall  remain  at  the  decease  of  the  first  taker, 
if  the  latter  has  only  a  life  estate  given  him,  or  if  such  a  gift  is 
preceded  by  a  power  of  disposition  so  restrained  in  its  exercise  that 
the  gift  of  what  is  left  refers  evidently  to  what  shall  remain  unap- 
propriated and  unappointed  under  the  power.*  A  blank  in  a  will 
accompanied  by  an  uncertain  description,  it  likely  to  prove  fatal 
to  the  gift.^ 

Uncertainty  as  to  the  object  of  gift  may  often  be  cleared  by  ex- 
planatory proof  of  extrinsic  facts  and  circumstances,  and  even  of 
intention,  under  the  rules  already  stated ;  ^  but  the  uncertainty 
which  avoids  here  as  well  as  elsewhere,  is  that  which  either  leaves 
the  obscurity  unaided  in  fine  by  proof  from  without,  or  confiiTus 
an  inference  that  the  testator  had  not  really  made  up  his  own 
mind.  There  may  be  an  equivocal  or  vague  description  capable,  as 
we  have  seen,  of  personal  application  with  the  aid  of  parol  proof.^ 
But  where  the  will  itself  specifies  a  class  all  of  whom  are  not  to 
take,  yet  leaving  it  in  doubt  which  was  to  be  selected,  as  in  a  devise 
to  "  one  of  the  sons  "  of  A  B  (who  has  several  sons),  the  gift  is  held 
void  for  uncertainty ;  and  probably  because  the  will  does  not  here 
intimate  that  the  testator  had  a  definite  object  of  bounty  selected 

1.  Supra,  §  478;  81  Tnd.  224;  103  5.  For  instance,  where  executors 
111.  607.  were  required  "  to  purchase  at  a  price 

2.  2  P.  W.  387;  L.  R.  1  Eq.  378;  not  exceeding  $  ,  a  tract  of  land 
Kennedy   v.   Kennedy,    10   Hare,   438.  at  or  near  the  residence"  of  certain 

3.  1  Jarm.  Wills,  303.  persons,    the    clause    was    hopelessly 

4.  See  Surman  v.  Surman,   5  Mad.  uncertain.     Cf.   §   584. 
123;    1   De  G.   &   S.   288;    Bibbens  v.  6.   Supra,  §§   572-588. 
Potter,  10  Ch.  D.  733;  1  Jarm.  Wills,  7.  lb. 

303-365,    where    the    authorities    are 
collated. 

776 


CIIAP.    IV.]       MISCELLANEOUS   PROVISIONS    CONSIDERED.  §    592a 

in  his  own  mind,  but  rather  the  contrary.*  Where,  however,  the  gift 
is  to  all  of  a  class  except  one  person  who  is  not  named  or  cannot  be 
ascertained,  the  inference  being  consistent  that  the  testator  under- 
stood his  own  exception,  the  will  is  upheld  by  taking  effect  in  favor 
of  the  whole  class.^  Another  ground  for  pronouncing  the  gift  void 
in  such  cases  might  be  the  testator's  apparent  misconception ;  as 
where  he  gives  a  legacy  to  A's  oldest  son,  and  A  never  had  a  son, 
but  daughters ;  though  here  it  might  instead  be  inferred  that  the 
gift  was  meant  supposing  A  should  ever  have  a  son.  The  confusion 
of  singular  and  plural  in  describing  the  object,  he  use  of  contradic- 
tory or  repugnant  words,  gifts  to  several  alternately  or  successively 
without  specifying  the  order,  these  are  among  the  various  instances 
in  which  a  devise  or  bequest  has  been  adjudged  void  for  uncertainty 
of  object;  and  the  fault  is  in  the  will,  which  becomes  entangled  in 
is  own  words  so  that  a  clear  intention  cannot  be  extricated  from 
the  expressions.^ 

§  592a.  The  Same  Subject;  Gifts  for  Charity. 

A  testator,  it  is  held  in  England,  may  give  the  residue  of  his  es- 
tate to  such  charities  as  the  executors  named  in  his  will  may  select ; 
and  such  right  of  seleetion  subject  to  chancery  supervision  is  per- 
sonal to  the  executors.^  Conformably  moreover  to  what  is  kno^^Ti  as 
the  cy  pres^  doctrine,  English  courts  of  chancery  have  sustained  a 
will  as  much  as  possible,  by  a  sort  of  straining  process  and  with  no 
great  regard  to  legal  consistency,  where  devises  and  bequests  are 
given  for  charity ;  treating  each  particular  case  upon  its  own  merits, 
expounding  the  gift  so  as  to  avoid  the  testator's  possible  attempt  to 

8.  See  1  Jarm.  Wills,  370,  where  1.  1  Jarm.  370-374.  See  White- 
various  examples  are  stated.  As  if  sides  v.  Whitesides,  28  S.  C.  325. 
one  should  make  a  gift  to  twenty  of  2.  Crawford  v.  Forshaw,  43  Ch.  D. 
the  poorest  of  his  relatives.  1  Roll.  643.  Consequently  an  executor 
Abr.  609.  So  where  one  names  "  one  named  in  the  will,  who  has  renounced 
of  my  sisters  to  be  executrix."  2  probate,  has  a  right  to  take  part  with 
P.  D.  72.  the  executors  who  qualify,  in  select- 

9.  1   Jarm.   Wills,   370:    3  K.  &  J.  ing  the  charities.     lb. 
206;  9  Hare,  37;  Gill  &  Bagshaw,  L.  3.  L.  Fr.     As  near  as. 
R.  2  Eq.  746. 

777 


§  592a  LAW  OF  WILLS.  [part  VI. 

create  a  perpetuity;  and,  out  of  deference  to  the  substantial  inten- 
tion of  the  will  to  benefit  one's  fellowmen  by  a  charity,  provided 
such  intention  appear,  to  invent  some  practicable  means  of  carrying 
the  gift  into  effect,  even  though  the  testator's  own  mode  must  fail 
for  technical  reasons.*  Such  jurisdiction  partakes  somewhat  of 
royal  perogative ;  and  the  doctrine  of  cy  pres  does  not  universally 
obtain  in  this  country  to  the  detriment  of  heirs  and  next  of  kin; 
some  important  States  of  our  middle  section  and  elsewhere  ex- 
pressly repudiating  it  while  all  the  New  England  States  excepting 
Connecticut  approve  it.^ 

Independently  of  this  cy  pres  doctrine  a  trust  under  a  will  is 
liable  to  be  declared  void,  though  evidently  for  commendable  and 
benevolent  objects,  for  want  of  a  certain  designated  beneficiary,  for 
uncertainty  and  indefiniteness  in  its  objects,  and  for  excess  of  jur- 
isdiction vested  in  the  executors  and  trustees.^  A  charitable  use 
may  be  applied  to  almost  any  object,  tending  to  promote  the  well- 
being  of  mankind ;  and  a  valid  devise  or  bequest  may  be  limited 
to  a  corporation  to  be  created  under  legislative  sanction  after  the 
testator's  own  death,  provided  it  be  called  into  being  within  the 
time  limited  for  the  vesting  of  future  estates.'^  Beneficiaries,  in 
general,  may  not  be  definitely  known  or  ascertained  at  the  time  of 
the  testator's  death,  and  it  is  sufficient  that  they  are  so  described  in 
the  will  as  to  be  ascertained  in  the  future  when  the  right  accrues 
to  receive  the  gift;  no  rule  of  perpetuities  being  transgressed.  A 
latent  ambiguity  as  to  the  cestui  que  trust  or  as  to  the  trustee  may 

4.  4  Ves.  14;   7  lb.  69,  82.  7.  Perry  Trusts,  §§  637,  736;  Inglis 

5.  Bouv.  Diet.  "  Cy  Pres "  ;  Bisph.  v.  Sailors'  Snug  Harbor,  3  Pet.  99, 
Equity,  §   130.  7   L.   Ed.    617;    43    N.   Y.   254,   3   Am. 

6.  See  Tilden  v.  Green,  130  N.  Y.  Rep.  694.  But  a  devise  to  a  chari- 
29,  27  Am.  St.  Rep.  487,  14  L.  R.  A.  table  corporation  to  be  incorporated 
33,  28  N.  E.  880,  where,  by  a  bare  by  an  act  from  the  legislature  within 
majority,  the  New  York  Court  of  Ap-  a  specified  number  of  years  after  the 
peals  declared  a  trust  void  for  un-  testator's  death,  may  transgress  the 
certainty,  whose  primary  object  was  rule  of  perpetuities.  Cruikshank  v. 
to  establish  and  maintain  in  New  Chase,  113  N,  Y.  337,  21  N.  E.  64. 
York  City  a  free  library  on  a  noble 

and  munificent  basis. 

778 


•CHAP,    IV.]       MISCELLANEOUS   PliOVISIONS   CONSIDERED.  §    593 

be  explained  by  extrinsic  evidence,  and  sucli  a  trust  is  not  to  fail 
for  want  of  a  trustee  named,  since  that  defect  may  be  suppied.^ 
But,  without  the  aid  of  the  English  cy  pres  doctrine,  a  grant  which, 
is  dependent  upon  the  selection  by  one's  executors  and  trustees  of 
the  charitalble,  educational,  and  scientific  purposes  to  which  the 
fund  shall  be  applied  is  ineffectual  and  void  because  of  indefinite- 
ness  and  uncertainty ;  ^  and  if  evidence  fails  to  identify  a  cestui  que 
trust,  the  trust  must  fail.^ 

§  593.  The  Same  Subject :  Uncertain  Gifts  for  Charity,  etc. 

The  precedents,  and  English  preeedents  especially,  treat  charit- 
able bequests,  therefore,  with  every  possible  indulgence,  sustaining 
gifts  in  tbis  respect  which,  were  individuals  the  objects,  must  in- 
evitably have  failed.^  Thus,  it  is  said  that  where  there  are  two 
charities  bearing  the  same  name,  and  it  cannot  be  ascertained  whicb 
of  them  the  testator  intended,  the  legacy  will  be  divided  between 
them  f  a  doubtful  example,  for  in  so  extreme  a  case,  and  supposing 
extrinsic  proof  left  one's  intention  balanced,  the  analogy  ought  to 
hold  good  in  the  case  of  individuals.''  If  some  individual  or  char- 
itable object  answer  the  description  embodied  in  the  will,  no  proof 
that  the  testator  meant  another  is  admissible ;  and  where  again  the 
will  purports  to  distribute  among  various  objects,  that  intent  in 
either  case  must  be  upheld  f  and  once  more,  if  proof  in  aid  of  a 
doubtful  description  points  to  one  object  rather  than  another,  the 
more  probable  object  takes  the  whole.^  But  this  distinction  at  least 
is  observable :  that  in  the  gift  to  an  individual  or  to  some  business 
corporation  a  private  or  personal  bounty  was  in  the  testator's  view, 
while  in  gifts  to  religion,  education,  or  other  charities,  the  benefit 
bestowed    is    a    public    one;    and    to    carrry    that   public    benefit 

8.  Keith  v.  Scales,   124  N.  C.   497,  3.  Amb.  524:   2  Beav.  81;   Alcliin's 
32   S.   E.   809.     Cf.   as  to  creating  a  Trusts,  L.  R.   14  Eq.   230. 
corporation.    94  N.  E.  1092,  200  N.  Y.          4.  Hare  v.  Cartridge,  13  Sim.   157. 
597.  Contra,  2  Jarm.  376. 

9.  Tilden  v.   Green,   supra    (1891).  5.  See  25  Beav.  109;   7  Met.   188. 

1.  124  N.  C.  497,  32  S.  E.  809.  6.  1  H.  L.  Cas.  778. 

2.  1  Jarm.  Wills,  376. 

779 


§    594  LAW    OF     WILLS.  [PART    VI. 

into  effect,  if  the  scheme  be  feasible  and  can  be  gathered  from  the 
will,  is,  after  all,  the  prime  concern,  the  identity  of  the  trustee  or 
conduit  of  the  testator's  benevolence  being  but  secondary  in  conse- 
quence.^ 

All  particulars  of  description,  whether  relating  to  subject  or 
object  or  both,  need  not,  as  we  have  seen,  be  accurate,  provided 
enough  remain  to  identify  after  rejecting  the  false  description  and 
calling  in  such  explanatory  proof  to  help  interpret  the  instrument 
as  the  rules  of  evidence  permit.^  And  the  rule  is  a  general  one,  that 
no  misdescription  of  the  thing  given  or  the  taker  shall  defeat  the 
gift,  if  upon  the  whole  there  is  no  reasonable  doubt,  consistently 
with  the  will's  own  expression,  who  or  what  was  intended.^  And 
while  a  wholly  false  or  uncertain  description  by  the  will  may 
vitiate  the  gift,  and  still  more  a  description  which  has  its  clear  and 
appropriate  application  elsewhere  is  not  to  be  corrected  by  parol 
as  a  misdescription  at  all,  a  description  failing  in  certainty  can 
nevertheless  be  thrown  out  in  many  instances  without  injury  to  a 
clear  and  unambiguous  gift  which  some  prior  description  in  the 
same  instrument  sustains,^  No  gift  can,  in  short,  be  pronounced 
void  for  uncertainty  until  after  a  resort  to  oral  evidence  it  still 
remains  a  matter  of  conjecture  what  the  testator  intended.^ 

§  594.  The  Same  Subject;  Conclusion  as  to  Uncertainty. 

Where  the  construction  of  a  gift  is  doubtful  after  all  extrinsic  as- 
sistance is  afforded,  the  leaning  of  the  court  should  be  to  that  course 
of  disposition  for  which  public  policy  pronounces  in  the  statutes 
of  descent  and  distribution ;  and  this  maxim  may  serve  for  partic- 
ular words  and  phrases  of  uncertain  tenor.^  So,  if  equivocal  descrip- 

7.   The   limits  of   this   work   forbid  8.  Supra,  §  576, 

an  extended   examination   of  the  law  9.  Supra,  §  588. 

of    charitable    gifts,    with    its    great  1.  Supra,  §  516;   78  N.  C.  396. 

multitude    of    precedents.      The    sub-  2.  Congregational  Society  v.  Hatch, 

jeet  is  briefly  touched  upon  in  Schoul.  48  N.  H.  393;  4  Paige,  271.     See  fur- 

Exrs.  and  Admrs.  §§  1464,  1465   (Vol.  ther,  57  Conn.  147,  17  A.  699. 

II ) ,  and   discussed  at  full   longtli    in  3.    France's    Estate,    75    Penn.    St. 

Perry   Trusts,   §§   687   et  seq.,  and   1  220;   80  lb.  340. 
Jarm.  Wills,  209-250. 

780 


CHAP.    IV.]       MISCELLANEOUS   PROVISIONS    CONSIDERED.  §    595 

tion  be  not  corrected  by  the  context  and  parol  evidence,  but  the 
name  and  description  equally  balance,  either  the  gift  must  be  di- 
vided; or,  as  some  cases  held  where  no  charitable  purpose  is  dis- 
closed, the  gift  fails  altogether.^  And  where,  upon  the  whole,  the 
provisions  of  a  will  in  each  and  all  of  its  items  are  so  obscure,  that 
with  all  the  light  of  extrinsic  evidence  no  definite  idea  can  be 
formed  of  what  the  testator  intended  in  any  of  the  dispositions  he 
has  tried  to  make,  the  will  or  provisions  must  fail  of  effect  for 
uncertainty.^ 

To  avoid  a  will  or  any  of  its  provisions  at  the  present  day  for 
uncertainty,  it  is  not  enough  that  the  disposition  appears  too  obscure 
and  irrational  for  the  testator  to  have  been  likely  to  intend  it ;  but 
more  than  this,  the  gift  must  be  without  clear  meaning  at  all."  And 
where  both  name  and  description  correctly  describe  some  person  or 
thing,  the  improbability  of  such  a  gift  on  general  principle  shall 
not  defeat  it.^ 

§  595.  Uncertainty  in  creating  a  Trust;  Precatory  Trusts. 

Any  particular  will  may  disclose  an  intention  to  create  a  trust, 
without  clearly  defining  the  objects  or  purposes  of  that  trust.  Ex- 
pressions of  desire  accompanying  a  devise  or  bequest  are  prima 
facie  obligatory,  moreover,  and  create  a  trust  unless  the  actual  in- 
tention appears  different.^  Where,  for  example,  one  gives  to  A  B 
$5000,  hoping,  wishing,  recommending,  expecting,  or,  perhaps,  en- 
treating him  to  give  the  same  or  some  part  of  it  to  C  D,  or  use 
it  for  C  D's  benefit, — for  here  C  D  is  considered  an  object  of  the 

4.  Supra,  §  593;  Drake  v.  Drake,  8.  1  Jarm.  Wills,  385,  and  Bige- 
8  H.  L.  Cas.  172;  1  Jarm.  382.  low's    note;    2    Ves.    333;    Knight    v. 

5.  Cope  V.  Cope,  45  Ohio  St.  464,  Boughton,  11  CI.  &  F,  513;  Knight  v. 
15  N.  E.  206;  Stephenson  i?e,  (1897)  Knight,  3  Beav.  148;  3  Mac.  &  G. 
1  Ch.  75;  Nelson  v.  Pomeroy,  64  546;  Hawkins  Wills,  159;  2  Story 
Conn.  257,  29  A.  534.  See  Hansen  Eq.  Jur.  §  1068;  15  Ohio  St.  103; 
Re,  132  N.  Y.  S.  257;  Wilce  v.  Van  Warner  v.  Bates,  98  Mass.  274;  35 
Anden,  94  N.  E.  42,  248  111.  348.  Me.    445;     Harrison    v.    Harrison,    2 

6.  Mason  v.  Robinson,  2  Sim.  &  S.  Gratt.  1,  44  Am.  Dec.  365;  13  Penn. 
295;  Wootton  v.  Redd,  12  Gratt.  196.  St.  253;   1  N.  H.  217;  35  Vt.  173. 

7.  1  Jarm.  Wills,   383;    Mostyn   v. 
Mostyn,  5  H.  L.  Cas.  155. 

781 


§  595 


LAW    OF    WILLS. 


[PAET    VI. 


testator's  bounty, — A  B  is  pro  tanto  at  least,  a  trustee  for  him  by 
inference.*  Out  of  this  rule  grows  the  doctrine  of  precatory  trusts, 
as  they  are  called ;  and  the  test  question  in  such  trusts  is  whether 
by  using  these  words  milder  than  a  command,  the  testator  meant 
to  control  A  B  or  to  submit  a  proposed  benefit  to  his  discretion  or 
selection  instead.^  For  in  this  latter  case  the  usual  presumption 
is  overcome,  and  the  legatee  may  carry  out  the  request  or  not  as  he 
chooses,  and  no  trust  is  created.^  No  general  rule,  aside  from  the 
testator's  obvious  intention,  can  be  formulated  for  determining 
whether  a  devise  or  bequest  carries  with  it  the  whole  beneficial  in- 
terest, or  whether  it  should  be  construed  as  creating  a  trust ;  but  i£ 
a  trust  capable  of  enforcement  be  sufficiently  expressed,  it  does  not 
disparage,  much  less  defeat  it,  to  call  it  ''  precatory."  ^ 


9.  Knight  v.  Knight,  supra.  And 
see  supra,  §  263. 

Among  expressions  which  in  the 
English  cases  have  been  treated  as 
prima  facie  creating  a  precatory  trust 
are  these:  "recommend,"  "request," 
"  entreat,"  "  advise,"  "confidence," 
"  under  the  conviction  that,"  "  in  full 
faith  that,"  "  not  doubting,"  and  even 
"hoping."  Hawkins  Wills,  159-162, 
and  cases  cited;  1  Jarm.  Wills,  387; 
93  Mo.  367;  Colton  v.  Colton,  127  U. 
S  300,  32  L.  Ed.  138.  But  a  mere 
verbal  expression,  such  as  the  above, 
ought  not  literally  to  determine,  aside 
from  the  general  scope  and  language 
of  the  will.  See  (1897)  2  Ch.  12;  72 
N.  E.  75,  186  Mass.  463. 

1.  Pennock's  Estate,  20  Penn.  St. 
268,  59  Am.  Dec.  718;  Stead  v.  Mel- 
lor,  5  Ch.  D.  225.  If  such  words  are 
addressed  to  an  executor,  they  are 
more  clearly  imperative.  66  Penn. 
St.  402. 

In  American  States  tlie  English 
doctrine  of  precatory  trusts  is  not 
always  adopted  with  full  force:  and 
still   less  are  our  courts  disposed   to 


adhere  to  any  artificial  rule  on  this 
subject.  See  Hawkins  Wills,  159, 
Sword's  note.  See  also  Gibbins  v. 
Shepard,  125  Mass.  141:  Van  Gorder 
V.  Smith,  99  Ind.  404;  100  Ind.  148; 
Van  Amee  v.  Jackson,  35  Vt.  173;  20 
Penn.  St.  268,  59  Am.  Dec.  718;  Burt 
V.  Herron,  66  Penn.  St.  400;  Brasher 
v.  Marsh,  15  Ohio  St.  103;  Howard  v. 
Carusi,  109  U.  S.  725,  27  L.  Ed.  1089 ; 
37  N.  J.  Eq.  21;  86  Cal.  265,  24  P. 
1028;  29  S.  C.  54,  6  S.  E.  902,  where 
the  precatory  words  were  treated  as 
amounting  to  mere  recommendation. 
On  the  other  hand,  Bigelow,  C.  J.,  in 
Warner  v.  Bates,  98  Mass.  274,  pro- 
nounces the  general  principle  of  con- 
struction a  sound  one,  and  only  open 
to  criticism  as  courts  have  some- 
times applied   it   in   particular  wills.. 

2.  See  1  Sim.  542;  Webb  v.  Wools, 
2  Sim.  N.  S.  267.  In  like  manner,  the 
words  "  in  trust "  were  not  meant  to 
create  a  technical  trust.  60  Penn.  St. 
344. 

3.  Per  curiam,  127  U.  S.  300,  312;, 
32  L.  Ed.  138. 


782 


CUAP.    IV.]       MISCELLANEOUS  PEO VISIONS   CONSIDERED. 


i>\)0 


Mere  expression  of  kindness  and  good  will  towards  these  third 
parties,  or  an  appeal  to  the  donee's  liberality  on  their  behalf,  is 
not  enough  to  create  a  precatory  trust  for  their  benefit  and  make 
the  dubious  words  alluded  to  operate  to  qualify  the  legatee's  in- 
terest/ Nor  do  expressions  which  per  se  might  amount  to  a  trust 
have  that  effect,  when  so  accompanied  by  other  words  that  the 
will  declares  or  implies  on  the  whole  a  contrary  intent.  Doubtful 
cases  may  be  explained  by  the  context ;  a  clear  devise  or  legacy  is 
not  to  be  cut  down  by  repugnant  expressions  in  the  will ;  ^  and 
where  the  words  of  the  gift  point  plainly  to  a  full,  absolute  and 
unfettered  enjoyment  by  the  donee  himself,  mere  precatory  ex- 
pressions annexed  to  the  gift  can  hardly  be  pronounced  imperative.^ 
And  where  the  testator  obviously  intends  a  gift  subject  to  the  bene- 
ficiary's discretion  on  certain  points,  that  discretion  must  be  re- 
spected.'^ 

The  indefinite  nature  and  quantum  of  the  subject,  and  the  in- 


4.  Bond  Re,  4  Ch.  D.  238;  1  Jarm. 
388;  11  CI.  &  F.  513;  Sale  v.  Thorn- 
berry,  86  Ky.  266,  5  S.  W.  468. 

5.  See  §  478. 

6.  1  Jarm.  Wills,  388;  Knight  v. 
Boughton,  11  CI.  &  F.  513;  14  Sim. 
379;  Meredith  v.  Heneage,  10  Price, 
306.  Some  cases  seem  reluctant  to 
uphold  a  widow's  absolute  discretion 
and  control  of  the  property  as  against 
the  testator's  own  children.  See  16 
Jur.  492,  cited  1  Jarm.  390.  But 
other  precedents  treat  her  with  the 
usual  favor  where  doubtful  precatory 
words  accompany  an  absolute  gift  in 
her  favor.  Hutchinson  Re,  8  Ch.  D. 
540.  So  far  as  the  children  con- 
cerned are  all  her  own,  and  none  of 
them  step-children,  we  may  well  ac- 
cede to  the  latter  view. 

Where  a  devise  or  bequest  is  un- 
limited and  accompanied  by  an  ab- 
solute power  of  disposition,  a  mere 
desire   or   request  that  all   which   re- 


mains undisposed  of  at  tlie  legatee's 
death  shall  go  to  certain  persons  can- 
not control  the  gift.  113  Ind.  18,  14 
N.  E.  571;  Bills  v.  Bills,  80  Iowa, 
269,  20  Am.  St.  Rep.  418,  8  L.  R.  A. 
696,  45  N.  W.  478.  See  also  §§  478, 
600,  as  to  repugnant  conditions  an- 
nexed to  a  gift;  Whitcomb's  Estate, 
85  Cal.  265,  24  P.   1028. 

Where  all  the  testator's  property 
was  devised  and  bequeathed  to  his 
wife,  coupled  with  a  "  wish "  that 
she  should  pay  collateral  kindred  an- 
nually so  much  "  if  she  find  it  al- 
ways convenient,"  this  is  a  trust  de- 
pendent upon  the  widow's  " conven- 
ience "  and  not  upon  her  volition. 
Phillips  V.  Phillips,  112  N.  Y.  197, 
8  Am.  St.  Rep.  137,  19  N.  E.  411. 
See  Enders  v.  Tasco,  89  Ky.  17,  11  S. 
W.  818;  Clark  v.  Hill,  98  Tenn.  300, 
39  S.  W.  339. 

7.  Lawrence  v.  Cooke,  104  N.  Y.  632, 
11  N.  E.  144. 


783 


§   595  I.AW   OF   WILLS.  [tart  vl 

definite  nature  of  the  objects,  are  always  used  by  the  court  as  evi- 
dence that  the  mind  of  the  testator  was  not  to  create  a  trust.^  There 
is  a  wide  difference  between  a  power  under  the  will  which  the  donee 
is  free  to  exercise,  and  a  trust,  which  equity  will  enforce  regardless 
of  his  wishes.  And  while  American  courts  have  declined  to  fol- 
low the  English  precedents  where  there  is  danger  that  literal  con- 
struction will  force  a  trust  out  of  loose  words  where  none  was  in- 
tended, the  English  chancery  judges  seem  of  late  disposed  in  many 
instances  to  retrace  their  steps,  as  though  conscious  that  the  doc- 
trine of  precatory  trusts  had  been  pressed  too  far  by  some  of  their 
predecessors,  and  loose  recommendations  invested  with  a  peremp- 
tory meaning  which  robbed  the  gift  of  its  just  efficacy.^  But  a 
trust  may  still  be  created  out  of  precatory  expressions,  and  en- 
forced, if  the  trust  itself  is  not  illegal,  where  the  supposed  objects 
of  the  testator's  bounty  are  certain  and  definite,  the  property 
clearly  pointed  out,  and  the  natural  relations  of  the  testator  to  the 
beneficiaries  such  as  to  raise  a  strong  motive  for  making  a  trust 
instead  of  confiding  implicitly  in  the  donee's  discretion  ;  and  where, 
most  of  all,  the  strength  of  the  language  used  by  the  testator  be- 
sides warrants  the  inference  that  a  decided,  though  soft,  imperative 
was  intended.''^    Words  precatory  in  form  may  be  found  by  the  con- 

8.  Lord  Eldon  in  Morice  v.  Durham,  Bigelow,  C.  J.,  in  Warner  v.  Bates, 
10  Ves.  536.  98  Mass.  274,  and  cases  cited;  Colton 

9.  1  Jarm.  Wills,  391;  James,  L.  v.  Colton,  127  U.  S.  300,  32  L.  Ed. 
J.,  in  Lambe  v.  Eames,  L.  R.  6  Ch.  138;  Seymour  v.  Sanford,  86  A.  7, 
599.      Some   of    the    earlier    chancery      86   Conn.   516. 

decisions    of     Sir    John     Leach     and  (1)    As  to  uncertainty  of  amount. 

others  put  a  careful  construction  upon  A  gift  to  A,  with  precatory  words  as 

precatory   expressions.      lb. ;    5    Mad.  to  disposing  "  what  shall  be  left  "  at 

434;    1   Russ.  509;   2  My.  &  K.   197;  his  death,  or  "the  bulk"  of  the  prop- 

(1897)      2     Ch.     12;     Hamilton     Re,  erty,  or  what  "he  may  save"  out  of 

(1895)   2  Ch.  370.     The  fact  tliat  the  income,  serve  as  examples.     Hawkins 

party    in    whose    favor    the    apparent  Wills,  164,  citing  1  Bro.  C.  C.  179;  2 

trust  was  created  deserved  the  bene-  My.  &   K.   197;    10   Hare,   234.     And 

fit  may  be  considered.     113  Mo.   112,  see  1  Jarm.  396.     But  whatever  difii- 

35  Am.  St.  Rep.  699,  20  S.  W.  786.  culties  might  have  been  supposed  to 

1.   Cases   supra;   2   Story   Eq.   -Jur.  stand  in  the  way  of  enforcing  a  trust, 

§§    1069,   1070;    1   Jarm.   Wills,   391;  the   extent  of   which   was   hopelessly 

784 


CKAP.    IV.]       MISCELLANEOUS   ntO VISIONS    CONSIDERED. 


§   595 


text  mandatory  in  effect.  And  we  apprehend,  furthermore,  that 
precatory  words  may  in  some  cases  establish  a  trust  so  far  that  the 
donee  must  fairly  exercise  an  honest  discretion  pursuant  to  the 
terms  of  the  will,  or  else  a  court  of  equity  is  likely  to  control  him.^ 
The  words  "  wish,"  "  desire,"  "  will,"  and  the  like,  expressed 
where  the  testator  bestows  without  reference  to  acts  of  one  or  an- 
other beneficiary  may  be  presumed  to  have  an  imperative  sense.^ 


unascertained,  a  court  of  equity  can 
measure  the  extent  of  interest  which 
adult  or  infant  shall  take  under  a 
trust  for  his  support,  maintenance, 
advancement,  provision,  etc.,  out  of  a 
fund  larger,  confessedly,  than  such 
adult  or  infant  can  claim,  and  some 
interest  in  which  is  given  to  another 
jjerson.  Wigram,  V.  C,  in  Thorp  v. 
Owen,  2  Hare,  610;  Hawkins  Wills. 
165;  98  Mass.  274;  2  My.  &  K.  138. 
There  may  be  a  gift  to  A,  a  widow, 
for  the  benefit  or  support  of  herself 
and  her  children,  so  as  to  create  a 
trust.  35  Me.  445 ;  Loring  v.  Loring, 
100  Mass.  340;  Woods  v.  Woods,  1 
My.  &  Cr.  401. 

(2)  As  to  uncertainty  of  objects. 
A  gift  to  A,  "  hoping  he  will  con- 
tinue them  in  the  family,"  was  held 
too  uncertain  to  create  a  trust.  Har- 
land  v.  Trigg,  1  Bro.  C.  C.  142.  But 
cf.  Coop.  111.  So,  too,  with  a  gift 
coupled  with  a  request  to  "  take  care 
of  B  and  his  family,"  etc.  10  Gill.  & 
J.  159;  21  Conn.  259.  But  vagueness 
of  object,  though  unquestionably  a 
ground  for  holding  that  no  trust  was 
intended,  may  yet  be  countervailed 
by  other  considerations  to  the  con- 
trary, if  only  it  clearly  appears  that 
a  trust  was  intended.  As  when  the 
gift  is  to  A,  "  well  knowing  that  she 
will  dispose  of  the  same  in  accord- 
ance with  my  views  and  wishes."  3 
Mac.  &  G.  546.     For,  though  circum- 


stances may  make  it  impossible  to 
ascertain  what  are  these  views  and 
wishes,  the  inference  is  that  the  tes- 
tator had  a  definite  gift  for  the  bene- 
fit of  others  in  his  own  mind. 

On  the  whole  the  question  seems  to 
be  whether  as  to  the  quantum  given 
or  the  objects  of  the  supposed  trust, 
the  testator  intended  that  something 
definite  or  capable  of  ascertainment 
should  go  positively  as  indicated,  or 
that  he  purposely  left  the  amount  or 
object  indefinite  with  the  idea  of 
making  suggestions  to  the  donee  for 
his  own  guidance  and  convenience 
rather  than  controlling  him,  and 
meaning  that  the  donee  shall  him- 
self select  amount  or  object  at  his  own 
discretion.  Thus,  where  the  testator 
requests  the  donees  to  "  distribute 
the  fund  as  they  think  v.'ill  be  most 
agreeable  to  his  wishes,"  no  impera- 
tive trust  is  created.  See  Stead  v. 
Mellor,  5  Ch.  D.  225.  Nor  is  a  wife's 
direction  in  a  will  binding  that  her 
Iiusband  shall  make  certain  gifts  and 
mementos  to  such  persons  as  she  had 
verbally  named  and  requested  of  him. 
125  N.  Y.  427,  26  N.  E.  467. 

2.  See  next  section,  where  this  prin- 
ciple of  construction  is  applied ;  1 
Jarm.  Wills,  399;  Raikes  v.  Ward,  1 
Hare,  445;  1  De  G.  &  J.  351;  63  Conn. 
58 ;  Black  v.  Herring,  79  Md.  146. 

3.  See  §  263  and  cases  cited.  The 
issue  of  precatory  or  imperative  may 


50 


785 


§  596  LAW  OF  WILLS.  [PAKT  VL 

On  the  wtole,  the  test  comes  by  taking  precatory  words  and 
phrases  in  a  just  connection  with  the  rest  of  the  will  and  gather- 
ing the  testator's  probable  intention  from  the  whole  instrument.* 


§  596.  Uncertainty  in  creating  a  Trust;  Gift  for  Specified  Pur- 
pose. 
The  question  whether  a  trust  is  sufficiently  created  may  also 
arise  where  the  testamentary  gift  is  made  for  some  specified  pur- 
pose and  without  precatory  words.  Where  the  declared  purpose 
of  the  gift  is  for  the  benefit  of  the  donee  and  no  one  else,  it  is 
usually  held  that  the  gift  is  absolute  notwithstanding,  and  that  the 
donee  may  claim  it  without  applying  or  binding  himself  to  apply 
the  money  according  to  such  a  purpose;  as  if,  for  example,  the 
legacy  is  specified  to  be  given  him  to  purchase  a  mill,  a  life-an- 
nuity, a  dwelling-house,  to  maintain  and  educate  him,  set  him  up 
in  business,  and  the  like.^  It  follows  that  though  the  legatee  thus 
named  die  before  the  stated  purpose  of  the  gift  can  be  executed, 
having  survived  the  testator,  his  legal  representative  shall  take  the 
gift ;  for  the  gift  has  vested  in  point  of  interest,  and  no  condition 

relate  to  some  incident  connected  with  365;   83  A.  379.  80  N.  J.  Eq.  101;   97 

the  gift.     See  Ogden   Re,  55  A.   933,  N.  E.  701,  253  111.  407.     Cf.   (not  im- 

25    R.   I.    378    (location    of   a   monu-  pevative)     (1904)    1    Ch.    549;    60    A. 

ment).     And  see  Dunn  v.  Morse,   83  694,  78  Conn.  4;   Angus  v.  Noble,  46 

A.  795,  109  Me.  254.  A.  278,  73  Conn.  56;    106  S.  W.  226, 

4.  Clay  V.  Wood,  153  N.  Y.  134,  47  32  Ky.   Law.   408;   58  A.   24;   Rector 

N.  E.  274;   Colton  v.  Colton,   127  U.  v.  Alcorn,  41  So.  370,  81  Miss.  788; 

S.  300,  32  L.  Ed.   138;   49  N.  J.   Eq.  Hillsdale  College  v.  Wood,  108  N.  W. 

570,    25   A.    510;    172   Mass.    101,    51  6^5,  145  Mich.  257;  Williams  v.  Bap- 

N.  E.  449  and  cases  cited.     See  Put-  ^is*  Church,  48  A.  930,  92  Md.  497; 

nam   v.    Safe   Deposit   Co.,    83   N.   E.  54  L.  R.  A.  427,  43  So.  68 ;  Mitchell's 

789,  191  N.  Y.  166;  Wolbert  v.  Beard,  Estate,  117  P.  774,  160  Cal.  618;  Mc- 

107  N.  W.  663,  128  Wis.  391;  64  N.  E.  Allister  v.  Hayes.  79  A.  726,  76  N.  H. 

692,   182  Mass.   72;    McCurdy  v.   Mc-  1081;   Fitzsimmons  v.  Harmon,  81  A. 

Galium,   72  N.  E.   75,   186   Mass.   462  667,  108  Me.  456   (too  indefinite), 

("request");     Stinson's    Estate,    81  5.    I    Jarm.    Wills,    397,   and   cases 

A.     207,     232     Penn.     218      ("would  cited;   Apreece  v.  Apreece,  1  V.  «fe  B. 

like  ")  ;  79  A.  587,  114  Md.  289  ("  will  364;  Knox  v.  Hotham,  15  Sim.  82;  16 

and   wish");    74   S,   E.   204,    113   Va.  lb.  45;   9  lb.  472;   28  Beav.  620. 

78G 


CHAP.    IV.]       MTSCE"LLANEOUS   PROVISIONS   CONSIDERED.  §    59G 

precedent  was  annexed  to  it."  American  cases  hold,  moreover,  that 
a  gift  to  enable  a  legatee  to  confer  a  bounty  on  others  is  not  a  trust, 
but  a  beneficial  legacy  to  him ;  ^  and  this  accords  with  the  doctrine 
of  our  preceding  section. 

The  principle  which  underlies  these  cases  is  that  equity  will  not 
compel  that  to  be  done  which  the  legatee  might  undo  the  next  mo- 
ment by  selling  the  thing  to  be  purchased,^  or  rather  that  the  gift 
vests  absolutely  in  the  donee,  where  a  purpose  is  stated  but  not 
a  positive  condition  of  receiving.  Yet  here,  as  usual,  the  true 
scope  of  the  gift  and  the  testator's  intention  must  be  studied  in  the 
context.  If  trustees  are  to  hold  the  property  for  this  donee  and 
appropriate  the  income  for  the  purpose  stated,  with  a  gift  over  in 
case  he  should  alienate  or  become  bankrupt,  his  right  to  receive 
the  fund  is  intercepted;  *  for  the  absolute  enjoyment  of  the  fund 
or  jus  disponendi  is  here  withheld  from  the  beneficiary ;  and  where 
again  the  amount  to  be  applied  for  his  benefit  is  left  to  the  discre- 
tion of  trustees,  his  gift  becomes  correspondingly  limited.^ 

A  stronger  motive  for  inferring  a  trust  arises  when  the  speci- 
fied purpose  or  motive  of  the  gift  is  the  benefit  of  another  person 
or  persons  and  not  of  the  primary  donee  alone.  Here  the  prin- 
ciples already  announced  in  considering  precatory  trusts  must  be 
applied,  and  the  particular  will  subjected  to  its  own  natural  inter- 
pretation. ]S[o  positive  rule  can  be  laid  down  for  all  cases,  but 
one  of  these  three  constructions  may  be  gathered  from  the  par- 
ticular context  and  circumstances:  (1)  that  an  imperative  trust 
was  intended;  (2)  or  that  the  primary  donee  may  freely  exercise 
his  own  discretion  as  to  the  quantum  of  benefit  to  the  other  person 

6.  Attwood  V.  Alford,  L.  R.  2  Eq.  11  S.  C.  375;  148  Mich.  140,  11  L.  E. 
479;   2  P.  Wms.  308;   Barnes  v.  Row-       A.  (N.  S.)  509,  111  N.  W.  757. 

ley,    3    Ves.    305.      This    holds    true  8.  1  Jarm.  398.     A  simple  direction 
semhle,  although  the  gift   is  not  im-  in  the  will  that  the  property  be  con- 
mediate,    but    subject    to    some    prior  verted  does  not  exclude  the  principle 
life    interest.      Day   v.    Day,    17    Jur.  of  the  text.     lb. 
586,   cited   in   1   Jarm.   397.      Contra,  9.  Hatton  v.  May,  3  Ch.  D.  148. 
L.  R.  8  Eq.  262.  1.  See  L.  R.   7  Ch.  727;    3  K.  &  J. 

7.  1  Jarm.  397;    11  Rich.  Eq.  238;  497;    1  Jarm.  397,  398. 

787 


§    597  LAW     OF     WILLS.  [pAKT    VI. 

or  persons,  provided  his  discretion  be  honestly  exercised;  (3)  or 
that  the  expression  of  motive  or  purpose,  being  wholly  nugatory, 
the  primaiT  donee's  gift  remains  unabridged.^ 

§  597.  The  Same  Subject:    General  Conclusion. 

Upon  the  whole,  although  courts  appear  less  disposed  than  for- 
merly to  conjure  up  a  trust  from  doubtful  and  uncertain  expres- 
sions of  intent,  and  to  recognize  at  length  the  testator's  own  purpose 
not  to  encumber  his  gift  with  obligations,  but  rather  to  express  his 
own  good  will  towards  others  while  confiding  their  interests  to  his 
donee's  sense  of  honor  and  fairness ;  and  although  an  expressed 
purpose  should  not  be  presumed  to  annex  to  the  gift  any  condition, 
yet  the  introduction  of  all  such  doubtful  expressions  into  a  will 
should  be  avoided,  if  possible,  for  it  almost  infallibly  sets  third 
parties  seeking  for  something  more  than  any  legatee's  free  discre- 
tion is  likely  to  bestow  upon  them,  and  more  too,  as  a  matter  of 
right  perhaps,  than  the  testator  himself  had  ever  dreamed  they 
should  receive;^  and  out  of  the  ill-feeling  and  disappointment 
comes  litigation. 

2.   In   I   Jarm.   Wills,   399-404,   the  597.     See,   further.   Glover  v.   Baker, 

English  precedents  which  arise  under  83  A.  916,  76  N.  H.  393;  35  Me.  445; 

these  three  rules  of  construction  are  44  S.  E.  174,  53  W.  Va.  165;   Loring 

stated  at  length.     On  the  whole,  Mr.  v.   Loring,   100   Mass.   340;    43   S.   E. 

Jarman  considers  that  the  preponder-  643,  132  N.  C.  227;  Crane's  Will,  54 

ance  leans  in  favor  of  giving  the  pri-  N.  E.  1089,  159  N.  Y.  557;   79  N.  E. 

mary    donee    a    discretion    which    he  1105,  187  N.  Y.  524;   83  A.  795,  109 

must  honestly  exercise,  or  in  default  Me.  254. 

subject  himself  to  the  control  of  the  3.    Caution   in   the    employment   of 

court;  but  with  a  tendency  to  narrow  words    which    might   give    rise    to    a 

rather  than  extend  the  effect  formerly  question   of  this   sort   is   enforced  by 

ascribed  to   words   expressive   of  the  Mr.  Jarman.    "  If  a  trust  is  intended 

purpose   or   motive   of   the   gift.      To  to  be  created,  this  should  be  done  in 

these  cases,  which  turn  upon  minute  clear  and  explicit  terms;   and  if  not, 

differences  of  expression  and  circum-  any  request  or  exhortation  which  the 

stances,     no     extended     reference     is  testator     may     choose     to     introduce 

necessary.    Among  them  are  Jubber  v.  should  be  accompanied  by  a  declar- 

.Jubber,   9   Sim.   503;    Hamley  v.   Gil-  ation   that   no  trust  or   legal   obliga- 

bert,  Jac.  354:   10  Sim.  371;   1  Hare,  tion   is    intended   to  be   imposed."     1 

445;    Lambe   v.    Eamcs,   L.   R.    6   Ch.  .Jarm.  Wills,  405. 

788 


CHAP.    IV.]       MISCELLANEOUS  PROVISIONS   CONSIDERED.  §    598 

N'o  technical  words  are  of  course  requisite  for  creating  a  trust 
if  only  the  intention  to  do  so  be  apparent  in  the  instrument.  Any 
donee  or  recipient  of  property  may  be  adjudged  a  trustee  thereof 
because  of  the  obligations  under  which  he  takes  it.  And  the  effect, 
where  the  intention  to  create  the  trust  is  sufficiently  clear  but  not 
the  purpose  or  object  of  that  trust,  is  to  cast  upon  the  devisees  or 
legatees  in  trust  (if  they  are  pointed  out  distinctly)  the  legal  in- 
terest in  the  gift,  not  however  for  their  own  benefit  nor  for  the 
too  uncertain  objects,  but  for  the  person  or  persons  in  whom  the 
law  vests  the  property  where  one  has  died  intestate.* 

Notwithstanding  that  the  trust  itself  may  fail  by  lapse  or  bo 
condemned  as  illegal,  a  devise  or  bequest  to  a  person  merely  by 
way  of  trust  is  not  to  be  construed  into  an  absolute  gift.^ 

§  598.  Testamentary   Gifts  upon   Condition  Precedent  or  Sub- 
sequent. 

A  testamentary  gift  may  be  upon  some  condition  precedent  or 
subsequent;  and  to  create  such  condition  no  particular  form  of 
words  need  be  used,  for  if  a  corresponding  purpose  be  read  in  the 
will,  that  purpose  takes  effect.  No  doubt  it  is  desirable  to  employ 
such  customary  expressions  more  or  less  positive  as  "  on  condi- 
tion that,"  "  provided,"  ®  "  if,"  and  the  like ;  nevertheless,  a  mere 
devise  or  bequest  to  A,  "  he  paying,"  or  "  he  to  pay  $500  to  C," 
may  amoimt  to  a  condition  if  the  context  justifies  that  sense.^  Any 
qualification,  restriction,  or  limitation,  annexed  to  a  gift,  and  modi- 
fying or  destroying  essentially  its  full  enjoyment   and  disposal, 

4.  "In  other  words,  the  gift  takes  N.  Y.  197;  Otjen  v.  Frobach,  134  N, 
effect  with  respect  to  the  legal  inter-      W.  833,  148  Wis.  301. 

est,  but  fails  as  to  the  beneficial  own-  6.   Co.   Lit.   236  b;    2   Jarm.  Wills, 

ership."     1  Jarm.  383.  1,   2. 

5.  McHugh  V.  McCole,  97  Wis.  166,  7.  The  word  "  proviso  "  in  modern 
65  Am.  St.  Rep.  106,  40  L.  R.  A.  724,  times  favors  the  idea  of  a  fee  upon 
72  N.  W.  631.  See  Ryder  v.  Lyon,  82  trust  rather  than  a  strict  devise  upon 
A.  573,  85  Conn.  245;  Woodbury  v.  condition.  Stanley  v.  Colt,  5  Wall. 
Hayden,  97  N.  E.  776,  211  Mass.  202;  119. 

Seitz  V.  Faversham,  93  N.  E.  385,  205 

789 


§    598  LAW     OF     WILLS.  [PART    VI. 

may  be  deemed  a  condition.  But  words  of  mere  description  or  in- 
ducement for  making  the  gift  do  not  constitute  a  condition.^  Prac- 
tical difficulty,  however,  is  often  found  in  adjudging  whether  words 
or  expressions  annexed  to  a  particular  gift  bound  the  donee  to  fulfil 
the  description  or  were  incidentally  used  by  way  of  identifying 
him  or  expressing  the  testator's  motives ;  whether  or  not  a  qualifi- 
cation, restriction,  or  limitation  upon  the  gift  was  the  true  intent 
of  the  instrument.  This  question  must,  wherever  it  arises,  depend 
upon  the  fair  intendment  of  the  particular  will,  aided,  if  need  be, 
by  extrinsic  and  explanatory  proof. 

Conditions  in  wills,  as  in  other  instruments,  may  be  precedent 
or  subsequent ;  in  the  one  case,  the  estate  or  interest  does  not  vest 
until  the  condition  is  fulfilled ;  in  the  other,  it  is  liable  to  be  di- 
vested if  the  condition  afterwards  fails.  The  distinction  is  an 
obvious  one  in  its  consequences;^  but  the  obscure  and  ambiguous 
language  of  the  will  renders  it  in  many  cases  very  perplexing  to 
tell  whether  the  testator  meant  the  one  sort  of  condition  or  the 
other;  if,  indeed,  he  clearly  apprehended  the  distinction  at  all. 
!No  criterion  is  afforded  by  the  choice  of  technical  expressions,  but 
the  probable  intention  of  the  testator  must  determine  the  construc- 
tion in  every  case  of  this  kind.^  A  condition  in  a  will  may  be 
valid,  notwithstanding  there  is  no  gift  over  expressed,  in  case  of 
failure  to  perform  the  condition,  though  that  circumstance  is  of 

8.  Denby  Be,  3  De  G.  F.  &  .J.  350;  cannot  relieve  from  the  consequences 
Porter  Re,  L.  R.  2  P.  &  D.  22 ;  Skip-  of  a  condition  precedent  unperformed, 
with  V.  Cabell,  19  Gratt.  758.  And  But  one  who  has  himself  prevented 
see  supra,  §§  285-290,  as  to  condi-  performance  cannot  take  advantage  of 
tional  or  contingent  wills.  In  Ditchey  the  non-performance.  4  Jones  L.  249. 
v.  Lee,  78  N.  E.  972,  167  Ind.  267,  1.  4  Kent  Com.  124;  Finlay  v. 
"  condition  "  was  held  to  mean  "  con-  King,  3  Pet.  346. 

Bidcration  "   merely.  As  to  a  condition  annexed  to  a  joint 

9.  See  4  Kent  Com.  125,  as  to  tliese  gift,  where  one  of  the  beneficiaries 
consequences.  Precedent  conditions  broke  the  condition  without  concur- 
must  be  literally  performed ;  and  even  rence  of  the  other,  see  Rockwell  v. 
a  court  of  chancery  will  never  vest  an  Swift,  59  Conn.  289;  Hayes  v.  Davia, 
i-.state  wiien  by  reason  of  a  condition  105  N.  C.  482. 

precedent  it  will  not  vest  iu  law.     It 

790 


CHAP.    IV.]       MISCELLANEOUS   PROVISIONS   CONSIDERED.  §    599 

consequence,  as  we  shall  see.  And  where  a  devisee  or  legatee  holds 
beneficially  on  a  condition  continuing  for  his  life  or  a  certain 
term  of  years,  the  estate  bocomes  absolute  on  his  death  or  the  ex- 
piration of  the  terai  prescribed;  such  condition  not  having  mean- 
while been  violated.^ 

§  599.  The  Same  Subject. 

Instances  of  conditions  precedent  in  a  will  occur  not  unfre- 
quently  in  the  reports.  As  where  property  is  devised  or  bequeathed 
to  A  if  he  lives  to  the  age  of  twenty-five ;  ^  or  if  he  marries  B  *  or 
into  B's  family,^  or  nuarries  v^ith  C's  approbation  (if  C  be  living),® 
otherwise  over;  or  upon  condition  that  A  shall  release  all  other 
right  or  claim  out  of  the  testator's  estate ;  ^  or  if  A  be  unmarried 
at  a  time  implied  or  specified  in  the  will ;  ^  or  after  C  ceases  to  be 
a  widow,  providing  A  shall  live  on  the  place  and  carry  it  on 
until  that  time ;  ^  or  provided  the  legatee  lives  on  the  place  and 
takes  care  of  testator  and  his  widow  as  long  as  they  live.^  A  be- 
quest to  a  college  on  condition  that  its  mame  is  changed  before  the 
testator's  decease  fails  unless  strictly  complied  with,  and  legisla- 
tion to  change  the  name  comes  too  late  if  not  procured  during  the 
testator's  lifetime.^ 

Conditions  subsequent  are  likewise  illustrated  in  the  books.     As 
where  A  is  excluded  from  the  benefits  of  a  will  which  devises  in 
trust  for  him  and  his  heirs  unless  his  father  shall  settleupon  him 
(as  e.  g.,  by  his  own  devise)  a  specified  estate.^     So,  too,  when  an 

2.  Hayes  v.  Harrison,  99  N.  E.  9.  Marston  v.  Marston,  47  Me.  495. 
1108,  206  N.  Y.  661  (devise  in  fee  1.  Minot  v.  Preseott,  14  Mass.  495. 
simple,  etc. ) .     See  §  600.                             See  also  2  Jarm.  Wills,  4,  Bi^elow's 

3.  8  Vin.  Ab.  104,  pi.  2.  note;    20  N.   J.   Eq.   43,  218;    Caw  v. 

4.  Davis  V.  Angel,  31  Beav.  223;  4  Robertson,  1  Seld.  135;  10  Watts, 
De  G.  F.  &  J.  524.  179;  Nevens  v.  Gourley,  97  111.  365. 

5.  15  Ves.  248;  Randall  v.  Payne,  2.  Merrill  v.  Wisconsin  Female  Col- 
1  Bro.  C.  C.  55.  lege,  74  Wis.  415,  43  N.  W.  104;   41 

6.  5  Vin.  Ab.  343,  pi.  41;  2  Jarm.  S.  E.  510,  63  S.  C.  474;  60  N^.  E.  110, 
Wills,   2,   3.  190  111.  200;   57  S.  W.  110,   155  Mo. 

7.  Willes,   153;   Gillett  v.  Wray,   1  413    (waiver  of  condition) . 

P.  W.  284.  3.    Popham   v.   Bampfield,    1    Vem. 

8.  Ellis  V.  Ellis,  1  Sell.  &  L.  1.  78.     And  see  Cro.  Eliz.  795. 

791 


§    599  LAW    OF    WILLS.  [pART    VL 

interest  is  given  to  A,  coupled  with  a  direction  tliat  on  some  pre- 
scribed event,  such  as  A's  maiTiage,  without  B's  consent,  it  shall 
be  forfeited,  or  so  that  it  shall  last  as  long  as  his  conduct  is  dis- 
creet and  approved  by  B  and  no  longer.^  So  where  a  house  is  de- 
vised upon  condition  that  the  devisee  shall  keep  the  house  in  good 
repair,  otherwise  over.^  And  in  various  gifts  which  are  made  con- 
ditional upon  the  maintenance  or  education  of  others  specified  by 
the  will.^ 

An  estate  is  presumed  to  vest  on  the  testator's  death,  rather  than 
at  a  later  date.  Hence,  if  no  intention  to  defer  the  period  of  vest- 
ing definitely  appears,  while  a  definite  date  for  performing  the 
condition  after  the  testator's  death  appears,  or  if  there  appears  a 
vesting  as  usual,  though  upon  probation,  a  condition  subsequent 
rather  than  precedent  may  be  inferred.  But  the  preferable  infer- 
ence is  that  of  a  condition  precedent  where  the  vesting  appears  de- 
ferred to  some  definite  date  after  the  will  comes  into  operation,  es- 
pecially if,  by  some  prompt  or  decisive  act,  the  condition  may  bo 
performed  or  its  alternative  solved.  Some  cases  reach  also  a  readier 
conclusion  that  the  condition  is  precedent  and  not  subsequent, 
where  it  affects  a  pecuniary  legacy  or  something  to  be  raised  out 
of  the  bulk  of  the  estate  and  no  more,  than  where  its  operation 
must  be  to  suspend  the  vesting  of  an  entire  residue  or  the  main 
inheritance  under  the  will.  The  condition  subsequent  better  fits 
the  adaptation  of  the  will  to  peculiar  and  unforeseen  exigencies 
which  may  arise  after  it  has  passed  out  of  its  maker's  control ;  for 
a  court  of  equity  may,  and  frequently  does,  relieve  the  donee  from 
embarrassing  conditions  which  turn  out  harsh,  impossible,  and  un- 
conscionable; but  to  vest  an  interest  in  any  one  clear  of  its  condi- 
tion precedent,  no  matter  how  unjust  or  incapable  of  performance 

4.  2  Jarm  Wills,  6,  7;  2  P.  Wms.  Hall,  24  Wend.  146;  Lindsey  v,  Lind- 
626;  2  8alk.  570:  Lloyd  v.  Branton,  sey,  45  Ind.  552;  41  Mich.  409,  1 
3  Mcr.  108;  Wynne  v.  Wynne,  2  M.  N.  W.  1048;  3  Woods  C.  C.  443; 
&  Gr.  8.  Morse  v.  Hayden,  82  Me.  227,  19  A. 

5.  Tilden   v.   Tilden,   13   Gray,   103,  443;   79  Wis.  557,  48  N.  W.  661;   113. 

6.  Smitli   V.  Jowett,  40  N.  H.   530.  F.  609;  64  Neb.  563,  90  N.  W.  560. 
And   sec   10   Pick.   306;    Hogcboom   v. 

792 


CKAP.    IV.]       MISCELLAXEOUS   PROVISIONS   CONSIDERED.  §    590 

that  condition  may  prove,  is  beyond  the  scope  of  its  autliorityJ 
The  acceptance  of  a  gift  compels  one  to  comply  with  the  condi- 
tion annexed  to  it;  and  the  parties  injured  by  his  non-complianco 
are  not  without  redress  in  law  or  equity.^  But  while  the  devisee 
or  legatee  may  be  forced  to  comply  with  his  condition,  and  those 
clearly  entitled  to  tlie  property  upon  a  breach  may  even  bring  their 
writ  of  entry  or  other  appropriate  suit  at  law,  equity  is  always 
indisposed  to  declare  a  forfeiture,  and  refuses  its  aid  to  divest  a 
title  under  the  will  for  breach  of  condition  subsequent,  affording 
relief  rather  against  forfeiture  whenever  compensation  in  damages 
can  be  made  in  full  of  the  injury.^ 

Conditions  subsequent  are  construed  beneficially  in  order  to 
save,  if  possible,  the  vested  estate  or  interest;  and  if  such  condition 
prove  illegal  or  incapable  of  performance,  whether  as  against  good 
morals,  or  as  impossible  under  any  circumstances,  or  as  rendered 
impossible  in  the  particular  case  and  under  the  existing  circum- 
stances, the  gift,  whether  of  real  or  personal  property,  relieved  of 
the  condition,  becomes  absolute  in  effect.^     On  the  other  hand,  a 

7.  2  Jarm.  Wills,  9;  Co.  Lit.  206  b;  gift  on  condition  subsequent.     Morse 

Boyce  v.  Boyce,  16  Sim.  476 ;  Marston  v.    Hayden,    82    Me.    227,    19    A.   443. 

V.  Marston,  47  Me.  495;  4  Kent  Com.  And  see  50  S.  E.  218,  137  N.  C.  572; 

124,   125.     See  e.  g.,  Davis  v.  Angel,  104  N.  W.  299,  95  Minn.  340;  Croxon 

4  De  G.  F.  &  J.  524,  where  the  con-  Re,  (1904)  1  Ch.  252;  Kuhn's  Estate, 

dition  precedent  was   that  the  donee  52   A.   126,   203   Penn.   17;    60   N.   E. 

should   marry   B.   and   it  was   shown  500,  190  111.  283;   27  So.  705,  52  La. 

that  with  the  testator's  own  consent  Ann.  1122;  98  F.  495   (death  of  bene- 

he  had  already  married  C.    The  right  ficiary)  ;  96  Va.  81,  70  Am.  St.  Rep. 

to  the  gift  does  not  accrue  as  it  would  825,.  30  S.  E.  462;  139  N.  W.  160. 

appear,   where   the   condition    is    pre-  8.  Tilden  v.  Tilden,  13  Gray,  103. 

cedent,  even  though  act  of  God  made  9.  Smith  v.  Jewett,  40  N.  H.  530; 

the   performance   impossible.      29   Vt.  4  Kent.  Com.  147;   2  Story  Eq.  Jur. 

273;    13    B.    Mon.    163,    56    Am.   Dec.  §§  1315,  1319;  Cunningham  v.  Parker, 

557;  Roundel  v.  Currer,  2  Bro.  C.  C.  146   N.   Y.  29,   48   Am.   St.  Rep.   765, 

67;  100  Wis.  633,  76  N.  W.  600.     But  40  N.  E.  535. 

a  gift  to  A,  on  condition  that  he  shall  1.  Shep.  Touch.  132,  133;  2  Jarm. 
maintain  the  testator's  son  during  the  Wills,  10-13 ;  Collett  v.  Collett,  35 
latter's  minority,  vests  an  absolute  Beav.  312;  Hervey-Bathurst  v.  Stan- 
title  in  A  if  the  son  dies  before  the  ley,  4  Ch.  D.  272;  Conrad  v.  Long,  33 
testator;    because    this    is    deemed    a  Mich.  78;   75  111.  315;   4  Kent  Com. 

793 


§    600  LAW    or     WILLS.  [part    VI. 

condition  precedent,  impossible  either  in  its  creation  or  under  the 
existing  circumstances,  or  illegal,  carries  down  in  its  defeat  the  gift 
whose  vesting  depended  upon  it,  though  the  donee  himself  be 
blameless;^  and  strict  construction  here  avails  little  if  it  canno't 
pronounce  that  the  will  in  reality  imposed  no  distinct  condition 
precedent  at  all.  In  short,  the  standpoint  both  of  donee  and  court 
is  far  more  favorable  for  doing  as  substantial  justice  may  require 
where  the  condition  grows  out  of  acceptance  instead  of  obstruct- 
ing it. 

Where  a  contingency  is  clearly  indicated  by  way  of  a  condition 
to  divest  or  prevent  from  vesting,  courts  will  not  accept  another 
contingency  as  the  equivalent  of  that  contingency,  by  way  of  sub- 
stitution.^ 


§  600.  The  Same  Subject. 

As  to  the  time  required  for  performing  or  fulfilling  a  condition 
precedent  or  subsequent,  this  should  be  that  period  which  the  will 
prescribes,  if  the  testator  clearly  expresses  or  indicates  his  wishes ; 
otherwise,  a  just  and  reasonable  time,  as  the  nature  of  the  case 

130:  Parker  v.  Parker,  123  Mass.  584;  possible  from  its  creation,  or  his  own 

Sliepard  v.  Shepard,   57  Conn.  24,   17  act    and    default    lias    made    it    such, 

A.  173;   Greenwood  Re,    (1903)    1  Ch.  unless    performance   of   the   condition 

749   (impossible  of  performance).  See  made  evidently  the  sole  motive  of  the 

71  N.  E.  80,  185  Mass.  560,  102  Am.  bequest.     2   De  G.  &  S.  49 ;   2  Jarm. 

St.   Rep.   363;    Pitts  v.   Campbell.   55  Wills,   12,   13.     See  repugnant  condi- 

So.  500,  173  Ala.  604.  tions,  next  section;  Moore  Re,  39  Ch. 

2.  Shep.  Touch.  132,  133;  3  Bro.  C.  D.   116.     And  see  further,  Conant  v. 

C.  67;   2  Jarm.  Wills,  9-13;   Boyce  v.  Stone,   143   N.   W.   39,   176   Mich.   654 

Boyce,  16  Sim.  476;   97  N.  C.  295,  2  (condition      precedent      possibly      il- 

S.  E.  450;  Gunning's  Estate,  83  A.  60,  legal)  ;  Jacobs  v.  Ditz,  202  N.  E.  1077, 

234  Penn.  139;  Perry  v.  Brown,  83  A.  260  111.  98;   Frost  v.  Blackwell,  88  A. 

8,    34   R.    I.    203.      The   civil   law   as  176,    82    N.   J.    Eq.    184    (substantial 

adopted  by  courts  of  equity  appears  performance    acceptable    where    strict 

to    slightly    alleviate    this    hardship,  performance    is    impossible)  ;    Conant 

where    personalty    is    bequeathed,    by  v.  Stone,  143  N.  W.  39,  176  Mich.  654. 

treating  the  gift  as  an  absolute  one  3.  McFarland  v.  McFarland,  177  111. 

if  the  condition  precedent  must  have  208,    52   N.   E.   281. 
been  known  by  the  testator  to  be  im- 

794 


CHAP.    IV.]       MISCELLANEOUS   PKOVISIONS    CONSIDERED. 


GOO 


and  a  fair  construction  of  the  instrument  may  import.''  vSome 
authorities  contend  that  where  the  will  specifies  no  time  for  per- 
formance, the  donee  shall  have  his  whole  lifetime  f  but  this  is  too 
broad  a  statement,  and  means  no  more,  properly  understood,  than 
to  pledge  a  court  of  equity  to  favor  one  against  the  harsh  opera- 
tion of  conditions,  especially  of  conditions  precedent,  as  generously 
as  circumstances  and  a  due  interpretation  of  the  will  may  permit, 
where  the  testator  himself  has  left  the  point  open.  On  the  other 
hand,  as  against  the  rigid  prerequisites  of  the  will  in  respect  to 
time,  equity  is  powerless,®  unless,  indeed,  the  court  can  lay  hold 
of  other  incidents,  such  as  the  failure  to  declare  a  gift  over  on 
non-performance,  and  thus  wrest  a  reasonable  extension  of  the 
donee's  opportunity  to  perform  out  of  the  will's  imperfect  and 
not  prohibitive  expression.'^  This,  however,  a  court  of  equity 
will,  sometimes  do,  and  prevent  forfeiture  by  construing  what 
seemed  a  condition  into  a  covenant.^ 

But  conditions  may  be  pronounced  void  when  clearly  repugnant 


4.  2  Jarm.  Wills,  7.  8,  and  Bige- 
low's  note;  1  Salk.  570;  Gulliver  v. 
Ashby,  1  W.  Bl.  607;  2  Met.  495;  54 
Me.  291;  Ward  v.  Patterson,  49  Penn. 
St.  372. 

5.  Marshall,  C.  J.,  in  Finlay  v. 
King,  3  Pet.  346,  7  L.  Ed.  702.  In  1 
Salk.  570,  the  devisee  had  his  whole 
life  for  performance  of  the  condition, 
and  so  may  it  be  in  other  cases;  but 
"  reasonable  time  "  appears  the  only 
safe  criterion,  for  one's  death  may 
happen  very  early  or  very  late. 

6.  As  where  the  conditional  donee 
was  abroad,  and  did  not  know  of  the 
condition  precedent  until  it  was  too 
late  to  choose  whether  to  perform  or 
not.  3  Mer.  7;  Powell  v.  Rowle,  L.  R. 
18  Eq.  243. 

7.  See  Hollinrake  v.  Lister,  1  Russ. 
500;   79  Wis.  557,  48  N.  W.  661. 

A  devise  on  condition  which  names 


no  time  of  performance  is  not  barred 
by  lapse  of  time.  Page  v.  Whidden, 
59  N.  H.  507.  But  a  condition  pre- 
cedent that  next  of  kin  shall  establish 
their  claims  in  a  year  must  be  strictly 
complied  with,  or  the  gift  over  will 
take  effect.  Hartley  Re,  34  Ch.  D. 
742. 

8.  Cunningham  v.  Parker,  146  N. 
Y.  29,  48  Am.  St.  Rep.  765,  40  N.  E. 
635.  The  testator,  after  imposing  a 
condition  may  expressly  or  impliedly 
remove  the  condition  and  leave  the 
gift  unimpaired.  Higgins  v.  Eaton, 
188  F.  938  (revoking  a  legacy  and 
substituting  another  gift  in  its 
place).  See  Dunlap  v.  McCloud,  95 
N.  E.  774,  84  Ohio  St.  272  (devise 
of  all  one's  real  estate  in  trust  and 
then  by  codicil  withdrawing  part  from 
the  trust  for  a  personal  enjoyment). 


795 


§    600  LAW    OF    WILLS.  [  PAET    VI. 

to  the  gift  to  which  they  are  annexed.  As  when,  for  example,  a 
testator,  after  plainly  devising  lands  in  fee,  proceeds  to  declare 
some  restraint  by  way  of  proviso  incompatible  with  one's  right  of 
full  dominion ;  that  the  land  shall  be  cultivated  after  a  certain 
manner,  or  let  forever  upon  a  stated  rent,  or  so  that  the  devisee's 
interest  shall  be  that  of  a  life  tenant  merely.^  Dominion,  too, 
involves  the  idea  of  beneficial  enjoyment  and  alienation  at  pleas- 
ure ;  and  a  condition  not  to  alienate  freely  is  of  course  incon- 
sistent with  that  right  of  full  dominion  which  a  fee  imports.-' 
Perhaps  the  construction  of  personal  bequests  above  alluded  to, 
where  the  testator  appears  to  have  annexed  something  which  he 
must  have  known  impossible  by  way  of  condition  precedent,  is 
explainable  on  this  same  ground  of  clear  repugnacy.^  That  a  plain 
and  absolute  gift  of  personalty  is  not  to  be  controlled  and  qualified 
by  conditions  totally  repugnant  to  the  interest  given  and  its  inci- 
dents follows  as  of  course.^  And  the  general  rule  which  upholds 
the  meaning  of  a  will  against  repugnant  words  and  clauses  which 
cannot  be  reconciled  with  its  leading  purpose  has  been  elsewhere 
stated.*  If  a  gift  of  income  be  absolute,  conditions  annexed  by 
the  will  to  the  principal  do  not  control  the  income.^  Sometimes  a 
gift,  absolute  by  the  will,  is  made  conditional  by  some  codicil 
thereto.^     It  comes,  in  fine,  to  a  matter  of  rational  construction  • 

9.  2  Jarm.  Wills,  13,  14;  Jac.  395;  the   will   would   be    defeated.      Stick- 

Amb.  479.  ney's  Will,  85  Md.  79. 

1.  2  Jarm.  Wills,  14,  and  Bigelow's  4.  Supra,  §§  478,  518.  And  so, 
note;  Co.  Lit.  206  b;  Willis  v.  His-  too,  in  considering  the  use  of  pre- 
cox, 4  My.  &  C.  201;  Zillmer  v.  Land-  catory  words,  following  a  clear  and 
guth,  94  Wis.  607,  69  N.  W.  568;  absolute  gift,  see  §  595.  See  105  N. 
Elliot  Re,  (1896)  2  Ch.  353.  But  see  W.  161,  328,  128  Iowa  416,  643,  1 
§§  601,  602,  pos*.  L.    R.    A.    (N.    S.)    142;    61    A.    1106, 

2.  Supra.  §   599,  and  final  note.  212   Penn.   564;    53   A.    824,   64  N.   J. 

3.  2  Jarm.  Wills,  19;  35  N.  Y.  350;  Eq.  16;  108  Cal.  628,  49  Am.  St.  Rep. 
1  Coll.  441;  Graham  v.  Lee,  23  Beav,  97,  41  P.  772;  Mulrane  v.  Rude,  146 
388;  Pearson  v.  Dolman,  L.  R.  3  Eq.  Ind.  476,  45  N.  E.  659.  Cf.  Lupton 
320;   Mulvane  v.  Rude,   146   Tnd.  476.  Re.    (1905)    P.   .'^21. 

Courts  especially  as  to  residuary  be-  5.  McElwain  v.  Congregational  So- 

quests  are  averse  to  construing  con-      ciety,  153  Mass.  238. 
ditions  to  be  precedent  when   by   do-  6.  Hughes  v.   Hughes,  91   Wis.  139^ 

ing  80  tlio  vesting  of  an  estate  under       64  N.  W.  851. 

7D0 


■CHAP.    IV.]       MISCELLANEOUS   PIJOVISIONS   CONSIDERED.  §    GOl 

and  the  general  intention  discoverable  in  the  will,  regarded  as  a 
consistent  whole,  should  prevail.  And  while  repugnant  conditions 
or  clauses  must  be  stricken  out  in  effect,  nothing  should  be  pro- 
nounced repugnant  which  amounts  to  a  legal  and  proper  qualifica- 
tion of  the  terms  under  which  the  gift  is  bestowed.  But  public 
policy  may  constitute  an  element  in  such  cases  besides;  and  as 
conditions  are  here  construed  into  conditions  subsequent  rather 
than  precedent,  —  for  conditions  precedent  are  never  favored  in 
the  construction  of  wills,^ — the  impossible,  illegal,  or  impolitic 
condition  being  rejected,  the  gift  stands  absolute.^  Upon  the 
whole,  the  condition  subsequent  appears  preferred  in  construction 
to  the  condition  precedent,  and  the  vesting  of  estates  as  soon  as 
possible  aids  this  preference.* 

The  doctrine  of  conditions  precedent  or  subsequent  and  repug- 
nant, is  often  involved  in  the  construction  of  deeds  and  written 
contracts;  and  the  illustrations  borrowed  from  cases  under  those 
heads  may  subserve  our  discussion  to  bring  out  the  leading  prin- 
ciples more  clearly,  with  perhaps  the  difference  that  a  will  of  all 
writings  deserves  the  most  flexible  interpretation  which  can  lay 
open  the  mind  of  its  maker. 

§  601.  Special  Conditions  considered;  Restrictions  upon  Alien- 
ation, etc. 
There  are,  however,  special  conditions  to  be  found  in  wills,  by 
way  of  restricting,  qualifying,  or  limiting  the  gift,  which  deserves 
our  further  attention.  One  of  these  is  the  restriction  upon  aliena- 
tion. Out  of  favor  to  the  devisee  of  lands,  we  find  a  great  many 
cases,  and  especially  the  older  ones,  insisting  very  strongly  upon  the 
controlling  force  of  technical  words  which  import  a  fee,  so  as  to  dis- 
card peremptorily  whatever  words  of  qualification  may  follow,  on 
the  theory  that  a  repugnant  condition  is  attempted,  which  in  con- 
sequence must  be  utterly  void.     A  clause  providing  that  land  shall 

7.  Supra,  %  562.  Dykeman    v.    Jenkines,     101     N.     E. 

8.  Supra,    §    599.      See    Shaver    v.      1013,  179  Ind.  392. 

Ewald.   134   S.   W.  906,   142   Ky.   472  9.  Suter  v.  Suter,  70  S.  E.  705,  63 

(conditions        construed        strictly)  ;       W.  Va.  690. 

797 


§    001  LAW     OF     WILLS.  [pART    VI, 

forever  be  let  at  a  definite  rent  fails  under  this  prohibition ;  and 
jet,  on  the  other  hand,  a  clause  that  the  rents  of  existing  tenants 
shall  never  be  raised  is  pronounced  valid  and  not  repugnant.^  In 
truth,  however,  the  question  is  mainly  one  of  intent  under  the  par- 
ticular will ;  and  courts  stand  up  for  justice  and  public  policy  when 
interpreting  a  will,  and  make  the  construction  conform  if  possible. 
Rejection  for  repugnancy  is  only  one  of  its  weapons  for  making 
out  a  lawful  and  reasonable  disposition,  and  much  of  the  artificial 
reasoning  under  this  head  amounts  to  nothing  more. 

This  consideration  should  guide  us  when  examing  the  cases 
which  relate  to  express  restrictions  upon  alienation  under  a  will. 
Conceding  that  a  restraint  upon  alienation  is  per  se  repugnant  to 
an  estate  in  fee  or  absolute  gift  of  any  kind,  it  does  not  follow  that 
such  a  condition  must  always  be  rejected  as  repugnant;  for  the 
context  may  show  that  this  restriction  or  qualification  was  of  the 
very  essence  of  the  devise  or  bequest,  and  that  no  fee,  no  absolute 
gift,  was  contemplated  at  all,  but  a  qualified  gift,  obnoxious  in  no 
respect  to  the  law  or  public  policy.  We  ask,  then,  what  did  the 
will  mean,  and  whether  its  meaning  was  to  qualify  or  restrain  in  a 
legal  and  proper  manner,  or,  instead,  to  annex  sometliing  to  a  clear 
gift  incompatible  with  its  proper  enjoyment,  or  in  a  legal  sense 
impolitic  and  impossible ;  and  in  the  latter  case  the  gift  is  pro- 
nounced good  by  throwing  out  the  repugnant  annexation,  but  in 
the  former  by  treating  the  qualification  as  blended  in  the  gift  and 
a  component  element ;  while  once  more,  as  we  have  seen,  if  the  im- 
politic or  impossible  were  intended  to  precede  the  vesting  of  the 
gift,  it  would  defeat  the  gift  as  a  condition  precedent,  though  not 
if  meant  for  a  condition  subsequent,  for  this  would  render  the  gift 
absolute.  Yet,  we  must  admit  that  tJie  rule  of  the  common  law 
which  in  general  terms  forbade  one  to  annex  to  his  grant  or  trans- 
fer of  property  otherwise  absolute,  the  condition  that  it  should  not 
be  alienated,  was  founded  to  some  extent  in  public  policy.^ 

1.  See  Bf'Ction  priceding-.  2  Jarm.  Ves.  656;  Nourse  v.  Merriam,  8  Cush. 
\Vill.4,  14,  citing  Til)bits  v.  Tibbits,  19      11. 

2.  Co.  Lit.  233a. 

708 


CHAP,    IV.]       MISCELLANEOUS   PROVISIONS   CONSIDEEED.  §    602 

§  602.  The  Same  Subject. 

The  legal  force  of  particular  words  in  conferring  a  fee  may  of 
course  interfere  with  a  flexible  interpretation  of  the  testator's 
wishes  in  such  cases.  And  upon  a  rigid  adherence  to  the  strict 
technical  meaning  of  terms  depend  many  of  the  precedents  which 
refuse  to  treat  the  condition  annexed  as  other  than  a  repugnant 
qualification  of  the  inseparable  incidents  to  enjoyment.  Thus,  if 
lands  are  devised  to  A  and  his  heirs,  with  condition  that  he  shall 
not  alienate,  charge  with  annuity,  and  the  like,  the  condition  is 
void ;  for  the  devise  to  A  and  his  heirs  is  literally  interpreted  to 
carry  a  fee.^  A  restraint  of  alienation  in  some  specified  mode  is 
held  void  on  similar  grounds ;  or  a  gift  over  if  the  devisee  dies  in- 
testate or  without  selling;  or  a  proviso  that  he  shall  alienate  to  no 
one  but  B,  or  must  alienate  within  a  given  time  or  shall  not  alien- 
ate during  a  specified  time.*  Yet  English  cases  support  the  view 
that  a  condition  not  to  alienate  to  a  particular  class  or  person,  or 
except  to  a  particular  class  or  person,  or  for  some  limited  and  rea- 
sonable period,  is  good.^  The  reason  for  such  a  distinction  does 
not  appear;  perhaps  it  is  that  qualifications  so  fair  blend  more 
easily  with  a  gift,  and  suit  the  presumed  wishes  of  a  testator  better 
than  the  former  and  rather  impolitic  ones,  by  which  a  creditor 
would  be  impeded  in  collecting  his  honest  claims  against  the  owner. 
Some  have  denied  this  whole  doctrine  of  the  t^estator's  right  to  re- 
strain even  for  a  day  the  power  of  alienation ;  ^  and  yet  that  the 
testator's  general  right  to  restrain  the  unfettered  disposal  of  what 
he  gives  by  way  of  bounty  to  another  exists  in  some  sense  can 
hardly  be  questioned.^     But  as  an  American  rule  at  all  events  it 

3.  See  Wills  v.  Hiscox,  4  My.  &  C.  time  is  void  in  law.  Rosher  v.  Rosher, 
201;    109   Ind.  476.    Cf.    §§    559,   560.  26  Ch.  D.  801. 

4.  2  Jarm.  14-17;  L.  R.  20  Eq.  189;  6.  Christiancy,  J.,  in  Mandlebaum 
8  D.  M.  &,  G.  152;  Shaw  v.  Ford,  7  v.  McDonnell,  29  Mich.  78,  18  Am. 
Ch.  D.  669;   35  N.  Y.  340,  617.  Rep.  61.   And  see  Freeman  v.  Phillips, 

5.  Co.  Lit.  223a:  Gill  v.  Pearson,  6  38  S.  E.  943,  113  Ga.  589;  Lehre'* 
East,  173:  2  Jarm.  17-19;  Barnett  v.  Will,  131  N.  Y.  S.  992;  96  N.  E.  546, 
Blake.  2  Dr.  &  S.  117.    But  absolute  251  111.  603. 

restraint  upon  alienation  for  a  stated  7.    See   Bigelow's   note   to   2    Jarm, 

799 


§    60S  LAW    OF    WILLS.  [PAIIT    VI. 

eeems  at  length  well  settled  by  the  weight  of  authority  that  when 
a  devise  or  conveyance  is  made  technically  in  fee,  a  restraint  upon 
alienation  attempted  further  by  way  of  condition  shall  be  taken  as 
void  for  repugnancy.^ 

As  to  the  gift  of  personal  estate,  restraints  of  alienation  have 
frequently  been  sustained,  so  long  at  least  as  they  operate  upon 
property  which  has  not  yet  fallen  into  the  donee's  full  possession 
and  dominion ;  ^  for  personalty  must  await  payment  and  distribu- 
tion, while  real  estate  generally  vests  in  enjoyment  at  once  on  the 
testator's  death,  the  probate  of  the  will  relating  back  for  that  pur- 
pose. But  to  incumber  a  legacy  to  A,  his  executors,  administra- 
tors, and  assigns,  with  a  general  restraint  upon  it^  disposal  or  a 
gift  over  of  what  he  does  not  spend  or  dispose  of  during  his  life, 
and  the  like,  is  held  in  the  English  chancery  courts  void  for  repug- 
nancy, as  in  a  devise.^ 

Whether,  then,  in  realty  or  personalty,  the  true  principle  of 
rejecting  the  repugnant  condition  of  a  gift  appears  to  be  that,  tech- 
nically speaking,  an  absolute  estate  or  interest  has  under  the  lan- 
guage of  the  will  vested  sufficiently  in  the  devisee  or  legatee;  and 
having  so  vested,  and  in  the  case  of  personalty  having  vested  moTO- 

Wills,   14,   15,  18.     A  ground  of  dis-  141   U.   S.    296,    315,   35   L.   Ed.   721, 

tinction  between  English   and  Ameri-  733;   Todd  v.  Sawyer,  147  Mass.  570, 

can    precedents    under    this    head    is  17    N.    E.    527;    Allen   v.    Craft,    109 

suggested  in  the  larger  scope  of   our  Ind.   476,   9  N.   E.   919,   58  Am.   Rep. 

public  registry  system;    for  the  Eng-  425;    Anderson   v.   Gary,   36   Ohio   St. 

lish    decisions     appear     to     be     based  506,   38   Am.   Rep.   602;    29  Mich.   78, 

upon  the  necessity  of  protecting  cred-  18    Am.    Rep.    61.      Cf.    Beall   v.   Wil- 

itors,  whose  means  of  ascertaining  in-  son,    143    S.    VV.    55,    146    Ky.    646; 

cnmbrances   upon  title  from   the   rec-  Trust  Co.  v.  Wolcott,  81  A.  1057,  85 

ords  are  imperfect  by  comparison.    91  Conn.    134. 

U.  S..  716.    See  133  Mass.  170     That  9.     Supra,     §§     557-559;     2     Jarm. 

English    courts    of    equity    sanctioned  Wills,   19,  22;    Churchill  v.  Marks,   1 

the    creation    of    conditions    against  Coll.  441. 

alienation   in  the  case  of  settlements  1.   Shaw  v.   Ford,   7   Ch.  D.   669;    1 

upon  a  marrie^l  woman  is  well  known.  Ch.   D.   229;    Henderson   v.   Cross,   29 

SHioul.  Dom.  Rel.   §  110.  Beav.  216;  Hill  v.  Downes,  125  Mass. 

8.    Zillmer    v.    Landguth,    94    Wis.  506;  Dugdale  Re,  38  Ch.  D.  176;   113 

€07,  69  N.  W,  568;   Potter  v.  Couch,  Ind.  18,  14  N.  E.  571. 

800 


CHAP.    IV.]        MISCELLANEOUS    PROVISIONS   CONSIDERED.  §    C02 

over  in  the  legatee's  own  possession  and  dominion,  any  further 
qualification  upon  the  donee's  absolute  dominion  over  the  property 
or  upon  its  legal  devolution  must  be  inconsistent  with  the  gift  and 
consequently  void.  If  there  be  more  than  this  in  the  doctrine,  it 
must  consist  in  some  ill-defined  principle  of  public  policy  which 
a  court  of  construction  may  lay  hold  of  to  defeat  the  testator's  at- 
tempt to  restrain  alienation  in  some  instances  but  not  in  others. 
For  the  testator's  intention  to  qualify  reasonably  what  he  chooses 
to  bestow  is  not  incapable  of  taking  effect  when  not  contrary  to 
law ;  and  as  we  have  elsewhere  shown,  a  devise  or  bequest  absolute 
in  terms  may  be  modified  in  effect  by  other  clauses  of  the  will,  so 
as,  for  instance,  to  cut  down  what  appears  a  fee  to  a  life  estate,  and 
otherwise  restrict  the  gift  in  accordance  with  the  testator's  mean- 
ing, though  not  so  as  to  violate  his  intention.'  It  is  true  that  the 
English  chancery  hag  usually  treated  an  equitable  life  estate  as 
alienable  and  liable  for  the  life  tenant's  debts  accordingly.^  ISTot- 
withstanding  the  long  controversy,  however,  whether  the  rule  of 
the  common  law  against  restraining  alienation  should  be  applied 
to  equitable  life  estates  created  under  a  will,  tbe  English  chancery 
rule  that  this  equitable  life  estate  is  alienable  by  the  life  tenant, 
subject  to  his  debts,  is  not  universally  admitted  in  this  countiy. 
On  the  contrary  many  of  our  State  courts  reject  the  theory  and 
permit  the  trust  to  render  the  income  inalienable  by  appropriate 
words.* 

2.  Supra,  §  559.  A  clause  of  a  will  Ky.  76;  Cosgrave  Re,  (1903)  2  Ch. 
forfeiting  a  reversionary  devise  given  708;  Wallace  v.  Smith,  68  S.  W.  131, 
absolutely  upon  assigning  or  at-  24  Ky.  Law,  139 ;  McCravey  v.  Olto, 
tempting  to  assign  is  valid.  Porter  74  S.  E.  142,  90  S.  C.  447  (code)  ; 
Re   (1892),  3  Ch.  481.  Lamar  v.  Lamar,  73  S.  E.   1057,   137 

3.  18  Ves.  429.  Ga.  734;    108  Me.  443,  81  A.   7S4;    73 

4.  See  Broadway  National  Bank  v.  S.  E.  90,  70  W.  Va.  76. 

Adams,   133  Mass.   170,   43  Am.  Rep.  A    clause    invalid    for    restraint    on 

504,    with    copious    citations,    where  alienation    cannot     be     validated    by 

this  subject  is  fully  discussed.      And  agreement  of  the  parties.    Church  v. 

see   §   60'6,  post;   134   S.  W.  153,   142  Wilson,  137  N.  Y.  S.  1002. 

51  801 


§    603  LAW    or    WILLS.  [part    VI. 

§  603.  Conditions  in  Restraint  of  Marriage. 

That  public  policy  affects  various  special  conditions  which  are 
treated  under  the  head  of  repugnancy  is  undeniable.  To  take,  for 
instance,  the  condition  in  restraint  of  marriage.  Here  we  find  nu- 
merous and  subtle  distinctions  drawn  out,  all  of  which  originate 
in  the  rule  of  the  civilians  that  conditions,  precedent  or  subse- 
quent, in  general  restraint  of  marriage,  although  accompanied  by 
a  gift  over,  derogate  from  public  policy  and  are  void.  This  maxim 
has  been  admitted  in  devises  of  real  estate,^  though  the  question 
more  commonly  arises  in  gifts  of  personalty,  where  the  ecclesias- 
tical courts,  in  dealing  with  legacies,  borrowed  freely  from  the 
Roman  law  and  made  this  canon,  among  others,  quite  familiar  to 
our  jurisprudence.^ 

As  an  Anglo-Saxon  doctrine,  the  rule  finds  important  modifica- 
tions. A  condition  in  palpable  and  unqualified  restraint  of  mar- 
riage, and  to  promote  celibacy,  is  indeed  void;  and  public  policy 
is  violated  whether  the  testator's  object  was  to  induce  pure  or  im- 
pure celibacy,  and  whether  he  meant  to  restrain  marriage  or  made 
a  gift  whose  natural  operation  is  to  restrain,  without  clearly  in- 
tending that  it  should  so  operate.^  More  especially,  where  the  gen- 
eral restraint  upon  a  legatee's  marriage  is  imposed  by  a  testator 
who  has  no  interest  therein,  it  is  and  should  be  deemed  both  in- 
valid and  impolitic.^  On  the  other  hand,  the  canon  of  the  civilians 
against  such  prohibition  is  not  adopted  in  its  full  force ;  the  x^nglo- 
Saxon,  court  gives  more  heed  than  did  ever  Roman  tribunal,  to 
the  last  wishes  of  a  testator,  though  the  will  be  unnatural,  inoffi- 
cious, or  of  doubtful  legality ;  and  in  some  of  the  United  States 

5.  2  Jarm.  Wills,  50;   9  East,  170;       399;      Bellairs     v.     Bellairs,     supra; 
Jones  V.  Jones,  1  Q.  B.  D.  279.  Cornell  v.   Lovett,   35   Penn.   St.   100; 

6.  2   Jarm.   Wills,   43,   44;    Bellairs      Jones  v.  Jones,  1  Q.  B.  D.  279. 

v.   Bellairs,   L.  R.   18   Eq.   510.        See  8.    See    2    Redf.    291;     Maddox     v. 

§    22.  Maddox,   11   .iratt.   804;    2   Jarm.   44, 

7.  2   Jarm.   Wills,  43-54,   and  cases  and  notes;  Reynish  v.  Martin,  3  Ark. 
cited,  Bigelow's  notes;   2  Redf.  Wills,  330. 

290-298;    Allen   v.   Jackson,   1   Ch.   D. 

802 


CHAP.    IV.J        MISCELLANEOUS    PKOVlSlOIsS    CONSIDEEED. 


G03 


certainly  the  disposition  has  been  to  repudiate  English  ecclesiasti- 
cal precedents  and  yield  to  continental  maxims  and  policy  no 
greater  respect  becanse  of  this  sort  of  spiritual  sanction.*  The 
modem  genius  of  the  age  is  to  find  out  its  own  public  policy  and 
make  that  the  rule  of  conduct. 

Hence  are  admitted  various  qualifications.  A  condition  that 
one's  widow  shall  not  marry  again  is  in  modem  times  universally 
upheld  as  valid.^  Our  law  puts  the  remarriage  of  a  widower  on 
the  same  ground,  and  permits  gifts  with  corresponding  condition 
to  stand ; '  though  in  this  instance  departing  from  the  Roman 
ecclesiastical  rule.^  Nor  is  a  partial  restraint  upon  marriage  void ; 
such  as  a  condition  to  marry  or  not  marry  with  the  consent 
of  someone  specified ;  ^  or  to  marry  or  not  marry  an  individual 
or  one  of  a  class  of  individuals ;  ^  or  to  marry  or  not  mari-y  with 
prescribed  ceremonies  ^  or  under  fair  restrictions  as  to  time,  place, 
age,  and  other  circumstances ; '  supposing,  of  course,  that  all  such 


9.  2  Jarm.  Wills,  44. 

1.  2  Sim.  N.  S.  235;  Allen  v.  Jack- 
son, 1  Ch,  D.  339;  Cornell  v.  Lovett, 
35  Penn.  St.  100;  Hibbits  v.  Jack, 
97  Ind.  570,  49  Am.  Rep.  478;  91  Ind. 
266,  46  Am.  Rep.  598;  34  Ch.  D.  362; 
Martin  v.  Seigler,  32  S.  C.  267,  3  S. 
E.  597.  See  Whiting's  Settlement, 
(1905)  1  Ch.  96;  (1904)  1  Ch. 
120,  431;  Herd  v.  Catron,  97  Tenn. 
662,  27  S.  W.  55,  137  L.  R.  A.  731. 
And  this  holds  whether  the  b  quest  is 
by  the  husband  or  some  other  person. 
Newton  v.  Marsden,  2  J.  &  H.  356. 

2.  Allen  v.  Jackson,  and  Cornell  v. 
Lovett,  supra.  Conditions  of  this  kind 
are  presumed  to  mean  marriage  after 
testator's  death  and  not  before.  See 
further,  108  Tenn.  505,  68  S.  W. 
250;  Harlow  v.  Bailey,  75  N.  E.  259, 
189  Mass.  208;  62  A.  456,  70  N.  J. 
Eq.    572;    Holbrook's    Estate,     62    A. 


368,  213  Penn.  93,  110  Am.  St.  Rep. 
537,  2  L.  R.  A.  (N.  S.)  545. 

3.  2  Jarm.  44.  A  gift  "  during  wid- 
owhood "  is  no  more  than  a  gift  for 
life.     8  Md.  517. 

4  2  Vem.  573;  Dashwood  v.  Bulke- 
ley,  10  Yes.  230.  As  to  marriage  with 
consent  of  trustees,  such  consent  is 
matter  of  substance  rather  than  form. 
44  Ch.  D.  654. 

5.  Graydon  v.  Graydon,  23  N.  J. 
Eq.  229;  1  Vem.  19;  Davis  v.  Angel, 
4  D.  F.  &  J.  524 ;  Hodgson  v.  Halford, 
11  Ch.  D.  959;  16  Ch.  D.  188;  Phil- 
lips v.  Ferguson,  85  Va.  509,  17  Am. 
St.  Rep.  78,  1  L.  R.  A.  837,  8  S.  E. 
241. 

6.  1  Moll.  611;   2  Jarm.  Wills,  44. 

7.  30  W.  Va.  171,  10  S.  E.  1073. 
Conditions  not  to  marry  a  man  of  a 
particular  pi-ofession  or  any  one  with- 
out a  sta.ted  large  income  have  been 
declared  invalid;  while  conditions  not 

803 


§    603  LAW    OF    WILLS.  [pART    VI. 

particular  conditions  are  bona  fide,  that  compliance  or  non-com- 
pliance therewith  is  from  the  nature  of  things  practicable,  and 
that  nothing  irrational,  no  covert  restraint  or  prohibition,  no  utter 
absence  of  a  real  interest  in  the  testator  himself,  no  violation  of 
policy  in  otlier  respects,  is  involved  in  a  gift  so  qualified.^  And 
conditions  like  these  may,  in  our  modern  age,  be  annexed  to  gifts, 
whether  of  real  or  personal  estate,  or  both,  under  a  will. 

,  Another  modification  of  the  rule,  which  leads,  it  must  be  con- 
fessed, to  some  fine  and  not  very  satisfactory  distinctions,  and  yet 
has  reason  and  Roman  precedent  on  its  side,  is  this:  that  a  bequest 
during  celibacy,  a  bona  fide  provision  for  one's  maintenance  while 
unmarried,  and  especially  for  a  legatee  who  had  a  more  natural 
claim  upon  the  testator's  bounty  as  a  single  person  than  if  mar- 
ried, will  be  upheld ;  ^  and  no  beneficial  gift  of  this  kind  can  be 
perverted  in  construction  to  an  injurious  and  merely  conditional 
one.  And  so,  too,  a  gift  of  income  or  support  to  A,  for  life,  or  "  as 
long  as  she  remains  my  widow,"  or  "  during  widowhood,"  is  less 
obnoxious  than  a  gift  which  annexes  the  condition  against  re- 
marriage peremptorily,  and  may  be  upheld  more  confidently,  for 
this  is  a  limitation  to  one's  bounty  on  sensible  grounds  rather  than 
a  penalty  by  way  of  condition.^ 

In  all  cases  where  conditions  in  apparent  restraint  of  marriage 

to   marry   a    Papist   or    a    Scotchman  971;    Brotzman's  Appeal.  133  Penn.  St. 

have  been  sustained.    1  Jarm.  44.  But  478,  19  A.   564;    124  N.  C.   51,   32  S. 

rules  of  public  policy  are  apt  to  vary  E.  377.     Where  the  gift  over  in  .such 

in   application    in    different   countries  a  case  is  stated  to  be  on  the    wife'3 

and  at  different  eras.  death,  it  may  be  a  question  whether 

8.  2  Jarm.  Wills,  45-50.  or   not,   upon   her  marriage,   the  gift 

9.  2  Jarm.  Wills,  44,  45,  and  Bige-  over  takes  immediate  effect.  Tredv^^ell 
low's  note.  The  distinction  does  not  Be,  2  Oh.  (1891)  640.  See  as  to  gift 
hold  in  gifts  of  real  estate.  Jones  v.  over,  (1899)  1  Ch.  63  (legatee  pro- 
Jones,  1  Q.  B.  D.  274;  Heath  v.  Lewis,  vided  for  in  any  event)  ;  Morgan  v. 
3  D.  M.  &  G.  954;  Cornell  v.  Lovett,  Christian,  133  S.  W.  982,  142  Ky.  44; 
35  Penn.  St.  100.  Fitzgerald's    Estate,    119    P.    96,    161 

1.   Summit  v.  Yount,  109  Ind.   506,      Cal.  319;   Maddox  v.  Yoe,  88  A.  225, 
9  X.  E.  582;   Knight  v.  Mahoncy,  152      121  Md.   288. 
Mass.  523,  9  L.   R.  A.   573,  25  N.  E. 

804 


CHAP.    IV.]        MISCELLANEOUS    PROVISIONS    CONSIDERED.  §    603 

come  into  view,  it  may  be  an  important  consideration  whether  or 
not  the  testator  has  declared  a  gift  over  on  breach  of  the  condition. 
In  a  mere  provision  for  support  during  celibacy,  no  gift  over  is 
needful ;  for  the  bequest  is  essentially  of  a  temporary  and  limited 
kind.^  And  a  gift  in  general  restraint  of  marriage  is  void  whether 
a  gift  over  accompanies  it  or  not.^  But  if  the  gift  be  properly  a 
conditional  one,  courts  frequently  pronounce  the  restraint,  though 
a  permitted  one,  mere  in  terrorem  words,  unless  a  gift  over  for 
breach  is  added,  to  make  forfeiture  complete,  and  show  that  the 
testator  was  really  in  earnest.'*  This  in  terrorem  doctrine  explores 
in  slippery  places ;  nor  are  the  instances  few  where  conditions  pre- 
cedent appear  to  have  been  thus  treated,  and  the  legatee's  title  made 
absolute,  though,  logically  speaking,  it  is  only  in  conditions  sub- 
sequent where  the  rejection  of  qualifying  terms  should  leave  the 
gift  positive  and  secure.^  But,  at  all  events,  a  testator  has  no  as- 
surance that  his  words  forbidding  marriage  with  a  particular  per- 
son, or  under  age,  or  without  the  consent  of  another,  or  by  way  of 
imposing  any  permitted  restraint  (except  that  best  founded  one 
as  to  a  widow's  remarriage),  will  be  treated  in  construction  as 
more  than  an  empty  threat,  unless  accompanied  by  a  gift  over  of 
the  property  in  case  of  non-compliance  with  the  condition.^ 

2.  Heath  v.  Lewis,  3  D.  M.  &  G.  vsigned  for  this  in  terrorem  doctrine; 
954;  Mann  t.  Jackson,  84  Me.  400,  and,  as  Mr.  Jarman  has  observed, 
30  Am.  St.  Rep.  358.  16  L.  R.  A.  707,  they  savor  of  excessive  refinement. 
24  A.  886 ;   59  A.   1025,  99  Me.  495.  The  truth  is,  that  the  notion  of  public 

3.  Bellairs  v.  Bellairs,  L.  R.  18  Eq.  policy  here,  as  in  other  instances  of 
510;  2  Jarm.  44;  Smythe  v.  Smythe,  the  kind,  vacillates  in  the  judicial 
90  Va.  638,  19  S.  E.  175;  (1895)  1  mind,  and  various  shifts  are  contrived 
Ch.   449.  in  consequence. 

4.  2  Jarm.  Walls,  45,  and  various  6.  See  2  Jarm.  46.  A  separate  equit- 
case^  cited;  Lloyd  v.  Branton,  3  Mer.  able  estate  may  be  restrained  as  to 
108;  Duddy  v.  Gresham,  2  L.  R.  Ir.  alienation  during  the  woman's  cover- 
442 ;  Cornell  v.  Lovett,  35  Penn.  St.  ture  even  if  the  restriction  is  made 
100;  Maddox  v.  Maddox,  11  Gratt.  while  she  was  unmarried.  21  Fla. 
804;  Harmon  v.  Brown,  53  Ind.  207;  629.  For  construction  of  a  life  estate 
Dawson  v.  Oliver-Massey,  2  Ch.  D.  determinable  on  marrying  again, 
753;  Otis  v.  Prince,  10  Gray,  581.  rather  than   a  fee   subject  to  devest- 

5.  Various    reasons    have    been  as-  ment,  see  Fuller  v.  Wilbur,  170  Mass. 

805 


§  604 


LAW    OF    WILLS. 


[part   VL 


§  604.  Condition  as  to  Residence,  assuming  Name,  maintaining 
Good  Character,  etc. 
A  condition  requiring  or  forbidding  constant  residence  in  some 
particular  place  or  at  some  particular  house  is  either  to  be  reason- 
ably interpreted,  if  possible,  or  else  pronounced  void  as  unreasona- 
ble of  itself  and  obnoxious  to  public  policy ;  and  this  latter  view 
is  always  tenable  where  the  restraint  must  so  operate  as  to  involve 
the  donee  in  some  breach  of  permanent  duty,  as  for  example,  in 
compelling  married  persons  to  live  apart.^  A  condition  may  favor 
the  obligations  of  marriage,  but  it  cannot  discourage  them.^  Ordi- 
narily one  who  is  to  be  supported  under  a  provision  in  a  will  is 
not  limited  to  live  in  a  particular  place,  especially  if  there  be  good 
reason  for  leavinsi:  it.^     But  a  condition  that  an  infant  shall  live 


506,  49  X.  E.  916.  A  devise  or  legacy 
to  a  wife  while  she  remains  a  widow 
means  for  life  or  during  widowhood, 
and  she  does  not  take  absolutely.  Brunk 
V.  Brunk,  137  X.  W.  1065  ( Iowa ) .  And 
eee  Briggs  v.  Caldwell,  84  A.  823,  236 
Penn.  369;  Miller's  Will,  74  S.  E. 
888,  159  X.  C.  123  (limitation  over)  ; 
Hammond  Be,  2  Ch.  D.  342. 

A  provision  for  two  daughters  or 
sisters  as  long  as  they  remain  unmar- 
ried is  not  unnatural  nor  against  pub- 
lic policy.  See  Ruggles  v.  Jewett,  99 
N.  E.  1092,  213  Mass.  167.  There 
may  be  a  condition  in  a  will  requir- 
ing consent  to  marriage,  and  if  the 
consent  was  given  during  the  testa- 
tor's life  the  condition  may  be  deemed 
fulfilled.  Park  Re,  (1910)  2  Ch. 
322. 

In  Wag.stafr  Re,  (1908)  1  Ch.  162, 
the  widow  was  the  survivor  of  a  big- 
amous  marriage. 

7.  See  2  Jarm.  Wills,  57,  58;  Wil- 
kinsfjn  v.  Wilkinson,  L.  R.  12  Eq. 
604;  54  Hun,  552;  Conrad  v.  Long, 
33  Mich.  79.  A  life  annuity  to  A, 
to  cease  when  A  and  B  should  cease 


to  reside  together,  is  not  determined 
by  B's  death.  Sutcliffe  v.  Richardson, 
L.  R.   13  Eq.  606. 

8.  3  Dem.  (X.  Y.)  108;  Moore  Re, 
39  Ch.  D.  116;  Hawke  v.  Euyart,  30 
Xeb.  149,  46  X.  W.  422.  The  cases  on 
this  point  run  somewliat  closely,  out 
of  deference  to  the  power  one  has  to 
provide  for  a  legatee's  temporary  sup- 
port without  directly  annexing  a  con- 
dition to  the  gift.  See  condition  pre- 
cedent upheld  in  Gunning's  Estate,  83 
A.  60,  234  Penn.  139.  Thus  a  gift*  to 
a  married  woman  of  income  so  long 
as  she  should  remain  A's  wife,  with  a 
provision  that  if  she  should  be  left 
a  widow  or  for  any  cause  should  cease 
to  be  A's  wife,  she  should  have  the 
principal,  was  held  valid  in  Thayer 
V.  Spear,  58  Vt.  327,  2  A.  161.  For 
here,  as  the  court  remarks,  there  was 
no  direct  inducement  hold  out  to  sepa- 
ration. See,  also,  where  the  gift  was 
upon  condition,  but  the  inducement 
indirect.  Born  v.  Horstmann,  80  Cal. 
452,  5  L.  R.  A.  577,  2  P.  169,  338. 

9.  Proctor  v.  Proctor,  141  Mass. 
165,  6  N.  E.  849. 


80G 


CHAP.    IV.]       MISCELLANEOUS   TKO VISIONS   CONSIDERED.  §    G04: 

during  minority  with  a  suitable  person  named  as  sole  guide  and 
guardian  may  be  upheld  under  most  circumstances.^ 

A  gift  may  be  made  on  condition  that  the  devisee  or  legatee  shall 
assume  the  testator's  or  some  other  specified  name.  Such  a  con- 
dition should  be  fairly  constiaied,  and  of  course  fairly  complied 
with,  though  a  formal  change  of  name  under  act  of  the  legislature 
is  not  in  all  cases  indispensable.^  A  gift  may  be  made  on  condi- 
tion of  good  conduct  and  remaining  in  the  homestead  for  a  pre- 
scribed period.^  But  a  gift  to  A  with  a  forfeiture  if  he  enters  his 
country's  military  or  naval  service  is  held  void,  as  against  public 
policy.* 

In  many  miscellaneous  instances  conditions  clear  of  meaning 
are  uplield  as  violating  no  rule  of  policy.  As  in  a  gift  on  condition 
that  a  certain  chapel  is  built  in  three  years,^  or  on  condition  of 
rearing  in  a  prescribed  religious  faith,®  or  on  condition  of  trying 
to  defeat  a  pending  lawsuit  against  the  testator,^  or  on  condition 
that  the  parties  become  reconciled.^  A  gift  may  be  made  to  a 
grandson  of  capital  held  in  trust  to  be  paid  him  on  his  arrival  at 
a  prescribed  age  (the  income  payable  to  him  meanwhile),  if,  in 
the  judgment  of  the  executors,  he  has  learned  a  useful  trade,  busi- 

1.  Johnson  v.  Warren,  74  Mich.  491,  conducted  herself  as  hitherto,  was 
42  N.  W.  74.  There  may  be  a  devise  held  forfeited,  where  she  had  a  bas- 
to  A  of  a  farm  with  a  condition  pre-  tard  child  at  nineteen  and  was  turned 
cedent  of  "  moving  upon "  it,  other-  out  of  the  house.  Reuff  v.  Coleman, 
wise  a  devise  over.    Robertson  v.  Mo-  30  W.  Va.  171,  3  S.  E.  597. 

well,  66  Md.  530,  565,  8  A.  273.     An  4    g^ard    Re,     (1908)     1    Ch.    383. 

infant   cannot   be   divested  of  a   gift,  And  see  141  N.  Y.  S.  700  (to  set  aside 

because   of   "refusal    or   neglect"'    to  ^^^  adoption). 

continue      occupying      the      mansion  5^  Tappan's  Appeal,  52  Conn.  412. 

house,  since  he  must  reside  where  his  g    Magee  v.   O'Neill,   19   S.  C.   170, 

guardian  prescribes.      (1894)     1     Ch.  45  ^.m.  Rep.  765. 

351.  7.  Cannon  v.  Apperson,  14  Lea,  553. 

2.  See  2  Jarm.  Wills,  57;  1  Ch.  D.  g.  Page  v.  Frazer,  14  Bush.  205.  A 
441;  Barlow  v.  Bateman,  3  P.  W.  65.  condition,  in  a  brquest  for  endowing 

3.  A  gift  of  this  character  to  a  ser-  a  church,  that  the  minister  shall  wear 
Aant  girl  of  eighteen,  if  she  remained  a  black  gown  in  preaching  is  valid, 
in  the  family  until  twenty-one,    and  Robinson  Re,  (1897)   1  Ch.  85. 

807 


§    605  LAW    OF    WILLS.  [PAET    VI. 

ness,  or  profession,  and  is  of  good  moral  character.®  A  gift  may 
be  made  on  condition  of  rendering  life  support  to  another.^  Or  on 
condition  of  the  reformation  of  a  dissipated  beneficiary.^  That  a 
condition  not  uncertain  or  ambiguous  happens  to  be  injudicious  is 
insufficient  reason  for  setting  it  aside ;  but  all  conditions  should  be 
justly  and  reasonably  construed,  and  the  judicial  disposition  is  to 
uphold  gifts  which  are  upon  just  and  reasonable  condition.^ 

§  605.  Condition  not  to  dispute  the  Will,  etc. 

Modem  wills  seek,  in  some  instances,  to  prevent  litigation,  by 
forbidding  the  beneficiaries  named  to  dispute  the  will.  The  law 
on  this  point  is  likely  to  be  more  firmly  settled  hereafter  than  it 
is  at  present.  To  exclude  all  contest  of  the  probata  on  reasonable 
ground  that  the  testator  was  insane  or  unduly  influenced  when  he 
made  it  is  to  intrench  fraud  and  coercion  more  securely ;  and  public 
policy  should  not  concede  that  a  legatee,  no  matter  what  ground 
of  litigation  existed,  must  forfeit  his  legacy  if  the  will  is  finally 
admitted.  As  for  construction  proceedings,  the  testator's  own  lan- 
guage may  have  rendered  them  necessary.  On  the  other  hand, 
while  the  probate  of  the  disputed  will  does  not  conclude  that  there 
was  no  just  cause  for  opposing  it,  the  testator's  last  wishes  are  au- 
thenticated as  he  expressed  them;  and  both  in  probate  and  con- 
struction proceedings,  all  speculative  and  heartless  litigation,  by 
which  so  many  estates  have  been  wasted,  may  well  be  discoun- 
tenanced.    No  arbitrary  rule  meets  well  the  cases  likely  to  arise 

9.  Webster  v.  Morris,  66  Wis.  366,  244;  48  S.  E.  412,  120  Ga.  SIO;  57  A. 

28  N.  W.  353,  57  Am.  R.  278;   49  A.  387,   76  Vt.  338    (attending  to  testa- 

574,  70  N.  H.  591.     And  see  59  Hun,  tor's  grave)  ;  71  N.  E.  801,  185  Mass. 

615.  560,    102    Am.    St.    Rep.    362;    Loy    v. 

1.  Irvine  v.  Irvine,  28  Ky.  L.  R.  McClister,  133  S.  W.  950.  141  Ky. 
262.   89   S.    W.   1193.  800. 

2.  See  Cassera  v.  Kennedy.  147  111.  3.  A  condition  should  be  reasonably 
6€0,  35  N.  E.  738 ;  Burnham  v.  Burn-  construed  so  as  to  uphold,  rather  than 
ham.  79  Wis.  557,  48  N.  W.  661;  b?  construed  in  an  illegal  sense  so 
Ilawke  V.  Euyart,  30  Neb.  149,  27  as  to  invalidate.  160  Mass.  431;  147 
Am.  St.  Rep.  391,  46  N.  W.  422.  And  111.  660. 

see  Iloyt  v.  Hoyt,  59  A.   845.  77  Vt. 

808 


CHAP.    IV.]        MISCELLANEOUS    PROVISIONS    CONSIDERED.  §    605 

under  this  head,  but  circumstances  ought  to  influence  the  construc- 
tion. 

The  English  rule  applied  to  legacies  seems  the  true  one ;  namely, 
to  treat  a  condition  not  to  dispute  the  will  as  in  terrorem,  and  void 
for  being  against  sound  policy,  wherever  it  appears  that  the  lega- 
tee had  probable  cause  for  contesting  the  validity  or  effect  of  the 
will,  though  not  otherwise.^  And  if  the  maxim  is  a  just  one,  it 
ought  to  avail  as  well  in  a  devise ;  and  generally,  unless,  perhaps, 
tJie  language  of  the  particular  gift  and  circumstances  require  the 
restraint  to  be  interpreted  as  a  strict  condition  precedent.^  But 
Mr.  Jarman  shows  that  this  doctrine  has  been  denied  where  lands 
were  concerned,®  and  even  intimates  that  the  in  terrorem  of  such 
conditions  where  personalty  is  given  has  no  greater  force  than  in 
the  permitted  restraints  of  marriage;  so  that  a  gift  over  of  the 
legacy,  upon  a  breach,  will  make  the  condition  good.^ 

In  this  country  the  question  appears  still  an  open  one,  though 
decisions  bearing  upon  the  point  may  already  be  found.  All  clauses 
or  provisions  of  this  character  should  at  least  be  construed  as 
strictly  as  possible,  being  penal  in  their  operation.^    In  some  States 

4.  2  Vern.  90;  3  P.  W.  344;  Morris  the  law  involved,  on  one  side  or  the 
V.  Burroughs,  1  Atk.  404;  2  Jarni.  other;  that  marriage,  trade,  agricul- 
Wills,   59.  ture,  and  the  like,  may  trench  on  the 

5.  Restraints  of  marriage  in  ter-  liberty  of  the  law,  but  it  is  imma- 
rorem  are  usually  found  as  conditions  terial  to  the  public  whether  land  is 
subsequent.  Yet  we  have  seen  that  enjoyed  by  the  heir  or  the  devisee, 
the  doctrine  avails  quite  freely  even  This  statement  appears  hardly  satis- 
where  the  conditions  seem  imposed  factory.  Is  it  not  for  the  interest  of 
rather  as  precedent  to  the  gift.  Supra,  the  public  that  doubtful  issues  of  au- 


§  603. 


thenticitv  as  to  one's  will  should  b; 


6.    Cooke   V.   Turner.    15    M.   &    W.  ^^''^y    adjudicated?       Collusive    pro- 

727;  14  Sim.  493.   It  was  here  argued  feedings  for  procuring  divorce  are  not 

that  the  condition  was  void  as  being  permitted;    nor   should   fraud  protect 

"contrary  to  the  liberty  of  the  law,"  ^^^^^  in  securing  a  probate.  See  Hoit 

,„,/,.      «,  „„  v.  Hoit,  42  N-  J.  Eq.  388,  7  A.  856. 
an   expression    to    be  found  m   fenep.  '  ^  ' 

Touch.    132,    which    seems    pertinent,  7.    2    Jarm.    58,   citing   2   P.   Wms. 

though  these  words,  to  be  sure,  might  ^^S,  and  11  W.  R.  935. 

mean   something   else.    The  court   re-  8.  Chew's  Appeal,  45  Penn.  St.  228. 

sponded  that  there  was  no  policy  of 

809 


G05 


LAW    OF    WILLS. 


[PAET    VI. 


the  bona  fide  Inquiry  whether  a  will  was  procured  through  fraud 
or  undue  influence  is  certainly  not  to  be  stifled  by  any  prohibition 
contained  in  the  instrument  itself.^  But  in  other  States  such  con- 
ditions are  pronounced  valid,  both  as  to  real  and  personal  prop- 
erty.^ So  far  as  needless  testamentary  construction  is  concerned, 
or  an  attempt  to  impeach  the  title  to  what  is  given  under  the  will 
and  invite  contests  on  technical  points,  or  any  unfair  probate  con- 
test, the  operation  of  a  condition  not  to  litigate  may  be  fairly 
favored.^ 


9.  Lee  v.  Colston,  5  T.  B.  Mon. 
246;  Jackson  v.  Westervelt,  61  How. 
Pr.   399. 

1.  Thompson  v.  Grant,  14  Lea,  310; 
Donegan  v.  Wade,  70  Ala.  501;  Beall 
V.  Schley,  2  Gill.  181,  41  Am.  Dec. 
415;  Bradford  v.  Bradford,  19  Ohio 
St.  546,  2  Am.  Rep.  419;  84  N.  Y. 
S.  937.  1  Redf.  Wills,  679,  supports 
this  latter  view. 

'■  If  any  or  either  of  my  children 
shall  enter  a  caveat  against  this  my 
will,  he  or  they  shall  pay  expenses 
of  both  sides,"  is  a  good  condition 
without  a  gift  over,  against  a  devisee 
taking  real  estate  under  the  will.  Hoit 
V.  Hoit,  42  N.  J.   Eq.   388,   7  A.   856. 

These  conditions  are  pronounced 
valid  and  legal.  Not  to  dispute  a  per- 
son's legitimacy.  Stapilton  v.  Stapil- 
ton,  1  Atk.  2.  Not  to  become  a  nun. 
Dickson's  Trust,  1  Sim.  N.  S.  37.  Not 
to  interfere  with  the  management  of 
of  guardians.  Jac.  157  n.  Not  to  in- 
t'rfere  with  the  trustees  (as  to  an 
annuitant).  45  Ch.  D.  426.  Not  to 
bring  in  a  bill  against  the  estate. 
See  Farnham  v.  Baker,  148  Mass.  204. 
19  N.  E.  371.  None  of  these,  how- 
ever, it  is  submitted,  are  so  obnoxious 
to  .sound  policy  as  the  condition  not 
to   contest  the   will   whore   reasonable 


cause  for  a  contest  may  exist,  and 
either  there  is  fundamental  doubt 
whether  the  will  was  the  testator's 
own  or  the  disposition  is  so  doubt- 
fully expressed  that  only  a  court  can 
decide  what  it  really  meant. 

A  legacy  may  be  given  to  a  testa- 
tor's step-son,  on  condition  that  the 
latter's  mother,  the  wife  of  the  testa- 
tor, does  not  elect  under  the  statute 
to  take  against  what  the  will  pro- 
vides for  her.  Carr's  Estate,  138 
Penn.  St.  352,  22  A.  18. 

2.  See  Smithsonian  Institution  v. 
Meech,  169  U.  S.  399,  42  L.  Ed.  793 
( 1897 ) ,  which  sustains  the  condition 
that  legatees  "  acquiesce  "  in  the  will, 
where  the  testator  asserted  title  to 
certain  real  estate  which  the  litigants 
contended  that  he  did  not  own.  But  a 
bill  reasonably  brought  to  ascertain 
the  true  construction  of  the  will  on 
proper  points,  without  thwarting  the 
designs  of  the  testator,  is  not  fairly 
cause  for  a  forfeiture  threatened  by 
the  will  to  any  one  undertaking  to 
"  sue  or  disturb  "  executor  or  trustee 
or  other  beneficiary  under  the  will. 
79  Mo.  146.  For  forfeiture  incurred 
under  a  condition  not  to  interfere 
with  the  management  of  the  trust,  see 
Adams  v.  Adams.  45  Ch.  D.  42G.  And 


810 


€HAP.    IV.]        MISCELLANEOUS    PROVISIONS    CONSIDERED.  §    GOG 

§  605a.  The  Same  Subject:  Bond  to  abide  by  Provisions  of  Will, 
etc. 

A  bond  to  abide  by  the  provisions  of  a  will  and  not  to  contest  it 
is  valid,  and  so  are  agreements  generally  among  those  interested 
in  the  estate,  for  the  avoidance  or  adjustment  and  compromise  o£ 
family  controversies ;  nor  can  public  policy  be  set  up  in  contraven- 
tion of  such  arrangements.^  Statutes  on  such  matters  are  found 
in  some  States. 

§  606.  Conditions  against  Bankruptcy:  Spendthrift  Trusts,  etc. 

One  more  condition  to  be  noted  is  that  which  seeks  to  protect 
against  the  donee's  bankruptcy  or  insolvency,  or  establishes  a 
"  spendthrift  trust  "  as  it  is  sometimes  called.  A  will  which  pur- 
ports to  vest  in  a  devisee  or  legatee  either  real  or  personal  property 
or  the  income  of  real  or  personal  property,  and  secure  to  him  its 
enjoyment  free  from  liability  for  his  debts,  is  void  on  grounds  of 
public  policy,  not  to  add  repugnancy,  as  being  in  fraud  of  the 
rights  of  creditors ;  or,  in  other  words,  because  it  takes  away  an- 
other of  the  incidents  of  property  as  essential  as  the  right  to  dis- 
pose of  it.*  We  have  already  ^  commented  upon  the  indisposition 
of  chancery  to  permit  the  fettering  of  alienation,  and  one  conse- 
quence of  the  right  to  alienate  is  the  subjection  of  the  owner's 
property  to  his  debts.  Bankruptcy  or  insolvency  operates  as  a 
transfer  of  one's  property  by  act  of  law,  and  an  exemption  against 

see    Friend's    Estate,    58   A.    853,    209  miehael,  72  Mich.  76,  16  Am.  St.  Rep. 

Penn.  442,  68  L.  R.  A.  447    (probabla  528;  1  L.  R.  A.  596,  40  N.  W.  173,  83 

cause)  ;  Kayhart  v.  Whitehead.  31  A.  Ga.   636,  22  Am.  St.  Rep.   487,  12   S. 

1133,  78  N  J.  Eq.  580    (appeal  from  E.  1065.     Aliter,  as  to  sinister  agree- 

probate)  ;   Rouse  v.  Branch,  74   S.  E.  ments  between  parties  to  induce  some 

133,     91     S.     C.    Ill    (gift    over    for  testator  to  make  his  will  in  favor  of 

breach);    Drennen   v.   Heard,    198     F.  particular   parties.      65    Vt.    434,    36 

414   (withdrawing  a  caveat  before  the  Am.  St.  Rep.  876,  26  A.  530. 
hearing);   Wall  Re,  136  N.  Y.  S.  452,  4.    2    Jarm.   Wills.   22:    Nichols    v. 

141  N.  Y.   S.  705    (illegal  devise  dis-  Eaton,  91  U.  S.   710,  23  L.  Ed.  254; 

putable).  Brandon    v.    Robinson,    18    Vcs.    429, 

3.   Barrett  v.   Garden,   65   Vt.     431,  433;    Mr.    Justice   Miller,    in    Nichols 

36    Am.    St.     Rep.    876,   26    A.    530;  v.  Eaton,  supra. 
Story  Eq.  §   625;   Carmicbael  v.  Car-  5.  Supra,  §  601. 

811 


§    GOG  LAW    OF    WILLS.  [PAET    VI. 

this  mode  of  transfer  is  not  to  be  created  bj  a  gift.^  But  the  dis- 
tinction noted  in  restraint  upon  marriage  avails  once  more  to  dis- 
tinguish in  s<3nse  a  gift  upon  condition  from  a  mere  limitation. 
Tims,  a  gift  of  the  income  of  property,  real  or  personal,  to  cease 
on  the  bankruptcy  or  insolvency  of  the  devisee,  is  held  good ;  ^  for 
no  absolute  transfer  is  here  intended,  but  only  a  provision  during 
solvency,  an  encouragement  to  the  punctual  discharge  of  one's 
debts,  which  neither  the  law  nor  public  policy  can  denounce.  But 
upon  a  further  extension  of  this  principle,  the  cases  are  somewhat 
discordant;  though  the  main  principle  which  runs  through  them 
appears  to  be  that  if  the  devise  or  bequest  over  vests  any  interest 
in  the  bankrupt  or  insolvent  himself,  anything  which  he  is  to  re- 
ceive and  enjoy  whether  by  himself  or  separably  in  connection  with 
others,  it  may  be  paid  over  to  his  assignee  and  appropriated  to  his 
debts.^  No  method  then  finds  clear  support  to  enable  a  testator  to 
settle  the  property  for  the  direct  and  exclusive  behoof  of  his  bene- 
ficiary through  all  vicissitudes  of  fortune.  But  instead  of  making 
the  trust  simply  cease  and  detennine  upon  his  bankruptcy  or  in- 
solvency, the  will  may  provide  that  in  such  event  that  part  of  the 
income  shall  go  to  some  other  person  or  persons  specified,  and 
even  to  wife  and  children,  since  their  interests  are  distinct  from 
his  own.  Leading  American  cases,  and  perhaps  the  weight  of 
English  authority,  favor  this  further  proposition ;  that  if  the  gift 
over  is  declared  for  the  support  of  the  bankrupt  and  his  family  in 
such  manner  as  the  trustee  may  think  proper,  there  is  nothing  left 
to  which  creditors  or  the  assignee  in  bankruptcy  can  assert  a  valid 
claim ;  ^  and  a  payment  voluntarily  made  to  the  bankrupt  under 
the  terms  of  such  discretion  is  not  to  be  disturbed.^ 

6.  Nichols  V.   Eaton,   supra.  took   effect   in   Broughton   Re,   W.   N. 

7.  Brandon    v.    Robinson,    18     Ves.       109.     See,    further,    Metcalfe   v.    Met- 
433;    1   Bro.   C.   C.   274;    3  Jarm.   25-      calfe,   3   Ch.    (1891)    1. 

42,    and    cases    cited;    Lewin    Trusts,  8.   Lewin    Trusts,    80;     Nichols    v. 

80;    Tillinghast   v.    Bradford,   5  R.   I.  Eaton,  supra;   Samuel   v.   Samuel,   12 

205;   Nichols  v.  Eaton,  91  U.  S.  716,  Ch.  D.  125;  2  Jarm.  33,  30,  and  cases 

supra.     Notwithstanding    the    annul-  cited, 

ment  of  an  insolvency,  the  forfeiture  9.  Nichols  v.  Eaton,  91  U.  S.  716, 

812 


CHAP.    IV.]        MISCELLANEOUS    PROVISIONS    CONSIDERED. 


606 


The  earlier  English  rule,  which  several  of  our  State  courts  fol- 
low, treats  an  equitable  life  estate  given  under  a  will,  as  so  insep- 
arably subject  to  the  debts  of  the  beneficiary,  besides  being  alien- 
able by  him,  that  no  provision,  however  explicit,  which  does  not 
operate  as  a  cesser  or  limitation  of  the  estate  itself,  can  protect  it 
from  creditors."  But  various  other  States  have  rejected  that  rule, 
regarding  it  sound  policy  that  a  testator  shall  bestow  his  own 
property  in  trust  with  a  prudent  regard  to  the  vicissitudes  which 
the  object  of  his  bounty  is  liable  to  encounter  or  to  the  dangers  of 
his  improvidence.  Accordingly  they  permit  him  to  qualify  his 
gift,  without  cesser  or  limitation  at  all,  by  any  provision,  whether 
express  or  implied,  direct  or  indirect,  to  the  effect  that  the  bene- 
ficiary's right  to  receive  income  shall  not  be  alienable  by  him  in 
anticipation  nor  subject  to  be  taken  by  his  creditors  in  advance  of 
payment  to  him.^ 


23  L.  Ed.  254;  Easterley  v.  Keney,  36 
Conn.  18;  Twopenny  v.  Peyton,  10 
Sim.  487;  Gtodden  v.  Crowhurst,  ib. 
642.  And  see  Shankland's  Appeal,  47 
Penn.  St.  113;  Nickell  v.  Handy,  10 
Gratt.  336;  Campbell  v.  Foster,  35  N. 
Y.  361;  Pope  v.  Elliott,  8  B.  Mon. 
56. 

1.  See  Nichols  v.  Eaton,  supra,  to 
this  effect.  In  the  opinion  of  the 
court  by  Mr.  Justice  Miller,  the  cases 
are  exhaustively  collected  and  com- 
mented upon.  Admitting  that  the 
English  cases  are  not  clearly  in  favor 
of  this  view^,  and  that  such  provisions 
tend  to  evade  the  older  policy  of  the 
law,  it  is  here  maintained  that  the 
measure  of  the  rights  of  creditors, 
and  the  policy  of  subjecting  property 
to  one's  debts  under  all  circum- 
stances, is  not  so  strongly  adverse  to 
the  debtor  in  American  States  at  the 
present  day  as  the  English  chancery 
courts  have   been  wont   to   define   it. 


See   numerous     State    decisions    here 
cited. 

For  forfeiture  by  any  act  render- 
ing one  "  liable  to  be  deprived  of " 
the  beneficial  enjoyment  of  the  be- 
quest (e.  g.,  by  bankruptcy,  see 
(1895)    2  Ch.   235. 

2.  Cases  supra;  SRI.  205;  4  Rich. 
Eq.  131. 

3.  Rife  v.  Geyer,  59  Penn.  St.  393, 
98  Am.  Dec.  351;  White  v.  White,  30 
Vt.  338;  8  B.  Mon.  56;  Broadway 
National  Bank  v.  Adams,  133  Mass. 
170,  43  Am.  Rep.  504;  151  Mass. 
266,  21  Am.  St.  Rep.  448,  7  L.  R.  A. 
393;  23  N.  E.  843;  151  Mass.  266; 
81  U.  S.  716,  and  cases  cited.  One  in- 
direct way  of  thus  keeping  out  A's 
creditors  is  for  the  testator  to  give 
the  property  to  A's  daughters  subject 
to  the  condition  that  they  "  support 
their  father  during  his  life."  146 
Mass.  369,  15  N.  E.  783.  See,  fur- 
ther,   Carew  Re    (1896),    1   Ch.    527. 


813 


§    608  LAW    OF    WILLS.  [pAET    VI. 

§  607.  Limitation,  etc.,  distinguished  from  Condition. 

One  result  of  our  present  investigation  is  to  confirm  the  dis- 
tinction which  the  law  makes  between  gifts  upon  condition  and 
gifts  upon  some  limitation,  conditional  or  otherwise.  A  de\ase  or 
beques.t  is  by  way  of  limitation  when  the  estate  or  interest  thereby 
created  is  bounded  or  circumscribed  in  time,  3^,-  that  it  cannot  lai=.t 
beyond  the  happening  of  a  stated  contingency.  Th^  conditional 
limitation  is  of  a  mixed  nature,  partaking  of  both  coDdit^on  and 
limitation ;  and  here  the  condition  is  followed  by  a  limitation  over 
to  a  third  person  in  case  the  condition  be  unfulfilled  or  broken. 
Thus,  a  simple  gift  of  property  on  condition  that  A  shall  not  re- 
marry is  a  gift  upon  condition  ;  a  gift  on  condition  that  A  shall  not 
remarry,  otherwise  over  to  C,  is  a  gift  upon  conditional  limitation, 
and  more  likely  to  involve  forfeiture  on  breach  of  the  condition ; 
while  a  gift  which  carries  the  beneficial  enjoyment  of  income  to 
A  until  his  or  her  remarriage  and  no  longer,  is  a  gift  upon  limita- 
tion and  cannot  endure  after  A  marries  again.*  A  testator,  as  the 
reader  has  seen,  may  place  limitations,  not  too  remote,  upon  his 
gift  of  real  or  personal  property. 

§  608.  Rights  and  Duties  of  Testamentary  Trustees. 

Trusts,  or  those  rights  of  property  which  one  party  holds  for 
the  benefit  of  another,  are  cognizable  in  courts  of  chancery,  and 
may  originate  in  a  variety  of  ways,  with  or  without  formal  writ- 
ings and  whether  the  holder  was  selected  as  a  trustee  or  not.  The 
trust  itself  arising  expressly  or  by  necessary  inference,  equity  will 

As    to   spendthrift    trustn   and    pro-  207  Mass.  6    (distinction  made).     The 

tecting    against    creditors    generally,  intent  here  is  to  'piit  the  fund  and  its 

Bee  ^lason  v.  R.  I.  Trust  Co.,  61  A.  57,  income  beyond  the  reach  of  the  bene- 

78    Conn.    81;    62    A.    948,    78    Conn.  fieiary's   creditors. 
498;   Goulder  Re.    (190.5)    2  Ch.   100;  4.    See    4    Kent.     Com.     122,    126; 

55  A.  1067.  206  Penn.  40.'5 ;   82  N.  E.  supra,      §§      562,      598,      600,      003; 

813,   230  111.  610;    95  N.  E.   985,   250  Whiting  v.  Whiting,  42  Minn.  548.  In 

111.  616    (tentator  need  not  state  rea-  Preston   Estates,     1     Washburn     Real 

son   nor   declare   .specifically)  ;    99   N.  Property,     and     other    works    which 

E.  662,  255  111.  433;    99    N.    E.    97;  treat  of  real  estate,  these  distinctions 

Lathrop    v.    Merrill,    92    N.    E.    1019,  are  furtlier  illustrated. 

814 


CHAP.    IV.]       MISCELLANEOUS   PROVISIONS   CONSIBEEED.  §    608 

not  suffer  the  trust  to  fail  for  want  of  a  trustee  nor  disclaim  its 
inherent  jurisdiction  to  appoint,  fill,  and  create  vacancies  and  su- 
pervise the  execution  of  the  trust  in  the  interest  of  the  beneficiaries 
concerned.  And  the  quality  and  continuance  of  the  trustee's  in- 
terest in  the  property  under  his  charge  and  control  must  be  deter- 
mined by  the  purpose  and  exigency  of  the  trust,  which  may,  as 
circumstances  direct,  amount  to  an  estate,  interest,  or  mere  power 
in  or  affecting  the  property  in  question.^  There  may  be  express 
trusts,  implied  trusts,  resulting  trusts,  or  constructive  trusts;  but 
the  operation  and  policy  of  the  Statute  of  Frauds  and  our  modern 
wills  acts  is  to  reduce  testamentary  trusts  to  the  head  of  express 
trusts  and  require  them  to  be  created  and  evidenced  by  a  written 
instrument  duly  signed  and  witnessed.  Where  the  validity  of  the 
trust  depends  upon  the  effect  of  the  will  in  transferring  title  to 
the  property,  the  will  must  be  executed  according  to  the  statute,^ 
or  it  cannot  be  used  as  a  declaration  and  proof  of  the  trust.® 

Into  the  general  law  of  trusts  and  trustees  we  need  not  enter. 
But  of  testamentary  trusts  we  may  observe  that  probate  legisla- 
tion and  practice,  especially  in  the  United  States,  tends  at  the 
pi'esent  day  to  assimilate  such  trustees,  as  to  their  credentials,  the 
method  of  their  appointment  and  removal,  and  the  supervision  of 
their  functions,  to  the  executor.  Wherever,  in  fact,  the  testator 
intends  that  some  trust  shall  be  carried  out  with  reference  to  the 
residue  of  his  estate  or  some  portion  thereof,  wherever  there  is 
something  more  to  be  done  than  simply  to  pay  off  all  debts,  de- 
mands, and  legacies,  wind  up  the  affairs  and  the  property,  and  dis- 
tribute the  balance  among  the  objects  designated  by  the  will  or 
statute,  permitting  both  realty  and  personalty  to  go  absolutely  and 
forever  to  certain  parties,  it  is  proper  that  the  will  should  declare 

5.  See  Hill  Tnistees,  49,  214,  229;  the  intention  of  the  testator  or  the 
Perry  Trusts,    §§   1-72.  nature  of  the  gift  requires  it.       But 

6.  Hill  Trustees,  61;  Perry  Trusts,  the  usual  and  preferable  sense  of  the 
§§   90-93;   Lewin  Trusts,  66.  term   describes  a  fiduciary  estate    or 

The  words  "  in  trust "  in  a  will  technical  trust.  King  v.  Mitchell,  8 
may  be  construed  to  create  a  use   if      Pet.   326. 

815 


§    G09  LAW    OF    WILLS.  [PART    VI. 

a  trust  and  designate  the  trustee  or  trustees.^  Kot  that  the  trust 
necessarily  fails  because  no  trustee  is  named,  any  more  than  a  will 
which  names  no  executor ;  one  may  appoint  the  same  persons  to  be 
both  executors  and  trustees  under  his  will,  or  he  may  appoint  dif- 
ferent ones ;  but  if  the  will  imports  a  trust,  some  trustee  or  trustees 
should  hold  the  fund  and  carry  out  the  particular  purpose.  The 
advantage  of  this  is  obvious ;  the  testator's  intentions,  if  the  court 
approve  the  selection,  will  be  carried  out  by  those  of  his  own 
choice;  and,  to  speak  more  generally,  not  only  does  a  legal  title 
support  various  expectant  and  contingent  or  uncertain  interests 
held  in  suspense,  and  conditions  or  restraints  upon  the  dominion 
of  property,  which  otherwise  might  fail,  but  the  whole  purpose  of 
one's  will  is  executed  by  some  third  party  who  holds  the  scales  be- 
tween present  aud  future  beneficiaries  and  all  contending  parties 
in  interest. 


§  e09.  The  Same  Subject. 

Two  questions  are  of  importance  respecting  the  nature  and 
quality  of  the  estate  taken  by  trustees  under  a  will:  (1)  What  is 
the  quantum  of  estate  and  interest,  beneficial  as  well  as  legal,  vested 
in  them  for  the  active  purposes  (if  any)  of  the  trusts  reposed  in 
them;  (2)  What  becomes  of  the  legal  estate  (if  any)  remaining 
after  the  active  purposes  of  the  trusts  are  satisfied ;  whether  it  re- 
mains in  the  trustees  or  passes  from  them  to  the  cestuis  que  trust; 
in  other  words,  whether  the  estates  of  persons  beneficially  inter- 
ested are  equitable  or  legal.^  Some  artificial  distinctions  have  here 
been  taken  in  devises  of  land  out  of  respect  to  the  early  Statute  of 
Uses,  which  preceded  the  Statute  of  Wills.     But  the  modem  i-ule, 

7.  In  the  simple  devise  of  a  dwell-  as  "  trust  "  or  "  trustee  "  are  not  in- 

ing-house  to  one's  widow  for  life  and  dispensable  in  a  will.   Hughes  v.  Fitz- 

over  in  foe  to  the  children,  wills  fre-  gerald,  60  A.  694,  78  Conn.  4;   87  S. 

quently  declare  no  trust.    But  where  W.  590,  113  Mo.  App.  444.     Cf.  Wal- 

tlic  gift  is  more  complex  as  to  subject  ker  v.  Hill,  60  A.  1017,  73  N.  H.  254. 
or   objects,  tni3teo.s  to  hold   the   fund  8.    Hawkins    Wills,    140;     2     Jarm. 

arc   desirable.    Technical    Avords    such  Wills,   291   et  seq. 

816 


CHAP.    IV.]       MISCELLAIN^OUS   PROVISIONS   COIS'SIDERED.  §    609 

which  is  aided  in  England  by  the  Statute  of  Victoria  and  in  this 
country  by  local  legislation,  inclines  to  vest  in  trustees  a  legal  es- 
tate sufficient  for  the  execution  of  the  trust  as  an  incident  to  the 
trust  in  all  cases;  at  the  same  time  limiting  that  legal  estate  to 
what  may  be  requisite  for  a  complete  execution  of  the  tnist.' 

Legislation  in  our  several  States  tends  to  simplify  the  adminisr 
tration  of  testamentary  trusts  by  bringing  such  trustees  under  the 
immediate  supervision  of  the  probate  court,  instead  of  leaving  all 
to  the  more  indefinite  direction  of  ch-ancery.  The  same  tribunal 
which  authenticates  the  will  and  issues  letters  testamentary  to  the 
executor  appoints  or  confirms  the  appointment  of  the  will  by  grant- 
ing letters  of  trusteeship  under  its  seal  in  like  manner.  By  the 
time  the  decedent's  estate  is  suflSciently  advanced  in  settlement,  the 
trustee  named  in  the  will  presents  a  suitable  petition,  upon  the 
hearing  of  which  the  court  grants  the  letters  at  discretion ;  and  so, 
too,  wherever  a  vacancy  exists  by  reason  of  declination  or  other- 
wise. Before  his  credentials  issue  he  must  file  a  bond  with  suffi- 
cient surety  approved  by  the  court,  unless  the  will  has  requested 
otherwise;  and  his  letters  may  be  revoked  on  good  cause  and  some 
one  else  appointed,  the  court  regarding  the  security  and  interests 
of  the  beneficiaries  in  all  cases.  The  executor  transfers  the  trust 
fund  to  the  trustee  thus  officially  vested  with  authority  to  receive 
it,  crediting  himself  in  his  accounts  accordingly  and  closing  the 
accounts  when  his  functions  are  fully  performed ;  and  the  trustee, 
returning  his  own  inventory  and  regular  accounts  from  time  to 
time,  carries  on  the  bookkeeping  of  the  estate,  or  rather  of  the  fund 
under  his  own  direction,  as  matter  of  public  record,  and  under  the 
supervision  of  the  court  of  probate  and  of  the  appellate  tribunal 

9.  See  this  subject  discussed  at  due  Wills,     140-158;  Doe  v.  Nichols,  1  B. 

length  by  general  writers  on  the  law  &  C.  336;  Blagrave  v.  Blagrave,  4  Ex. 

of  trusts,  Perry  and  Lewin  more  par-  550;    11   Ad.   &   El.    188;     Barker    v. 

ticularly.  See,  also,  Young  v.  Bradley,  Greenwood,  4  M.  &  W.  421;   2  Jarm. 

101  U.  S.  782,  25  L.  Ed.  1044;   Stat.  Wills,    289-323,    Bigelow's    note     and 

1   Vict.    c.    26,    §§    30,   31;   Hawkins  numerous  cases  cited. 

62  817 


§     GIO  LAW    OF    WILLS.  [PAKT    VI. 

which  exercises  prohate  and  equity  jurisdiction,  until  the  trust  is 
completely  discharged.^ 

§  610.  Trusts  which  are  Invalid  or  liable  to  be  set  aside,  etc. 

Trust  provisions  in  a  will,  in  order  to  stand,  must  be  not  only 
consonant  with  public  policy,  out  of  so  clear  and  definite  a  natui^e 
that  the  court  may,  in  the  exercise  of  its  ordinary  judicial  func- 
tions, render  them  effective.^  Various  trusts  which  a  testator  may 
have  attempted  to  create  are  pronounced  invalid  or  liable  to  be  set 
aside.  Thus,  where  a  will  undertakes  to  make  a  person  trustee 
lor  his  own  benefit  during  his  life  the  trust  is  void ;  for,  in  order  to 
constitute  a  valid  trust,  a  trustee,  the  beneficiary  and  property,  are 
three  distinct  essentials,  and  without  each  of  the  three  a  trust  can- 
not exist.^  The  same  person  cannot  be  at  the  same  time  trustee 
and  beneficiary  of  the  same  identical  interest.^ 

Wherever  the  will  gives  a  legacy  in  some  secret  trust  which  is 
contrary  to  public  policy,  equity  treats  the  gift  as  void  and  enforces 
a  trust  as  for  the  benefit  of  next  of  kin  or  residuary  beneficiaries, 
not  permitting  the  legatees  named  to  enjoy  it  absolutely;^  and 
where  the  will  creates  a  trust  without  a  beneficiary  the  trustee 
holds  for  the  benefit  of  heirs  or  distributees  of  the  testator.^ 

Moreover,  a  court  of  equity  will  order  trust  property  under  ai 
will  to  be  conveyed  by  the  trustee  to  the  beneficiary,  where  there 
was  what  is  called  a  dry  trust,  or  where  the  purposes  of  the  trust 

1.  See  statutes  of  the  several  322.  Cf.  Boning's  Estate,  63  A.  296, 
States,  which  enter  fully  into  the  de-  214  Penn.  19.  The  discretionary  power 
tails  of  such  probate  jurisdiction.  given  to  a  trustee  passes  to  his  suc- 

2.  See  McHugh  v.  McCole,  97  Wis.  cesser  in  the  trust.  Shattuck  v. 
166,  65  Am.  St.  Rep.  106,  72  N,.  W.  Stickney,  97  N.  E.  774,  211  Mass. 
631.  327. 

3.  Rose  V.  Hatch,  125  N.  Y.  427,  26  5.  Fairchild  v.  Edson,  154  N.  Y. 
N.  E.  467;  115  N.  Y.  346,  357,  22  N.  199,  61  Am.  St.  Rep.  609,  48  N.  E. 
E.  150.    Cf.  §  608.  541. 

4.  A  trustee  may  be  empowered  by  6.  Sims  v.  Sims,  94  Va.  580,  64  Am. 
will   to   designat*'    his   own   successor.  St.   Rep.   772,  27   S-  E.   436. 

Orr   v.   Yatee,  70  N.   E.   731,   209   111. 

818 


CHAP.    IV.]        MISCELLANEOUS    PROVISIONS   CONSIDERED.  §    611 

have  been  accomplished,  or  where  no  good  reason  appears  why  the 
trust  should  continue  and  all  the  persons  interested  in  it  are  sui 
juris  and  desire  the  trust  terminated.  Thus,  as  instance  of  a  dry 
trust,  an  unqualified  gift  of  the  use,  income,  and  improvement  of 
jyersonal  property,  vests,  as  we  have  seen,  an  absolute  interest  in 
the  beneficiary,  unless  the  will  shows  a  different  intention ;  and 
especially  does  this  hold  true  where  there  is  no  gift  over  of  tlie 
capital.^  Should  the  testator,  therefore,  have  directed  a  trust  for 
paying  such  income  to  his  beneficiary,  the  latter,  if  of  age  and 
sni  juris,  may  have  that  trust  set  aside  in  equity  as  a  dry  one  and 
enjoy  the  property  absolutely,  unless  the  court  is  convinced  that 
good  reason  exists  to  the  contrary.^ 

§  611.  Executors  holding  in  Trust,  etc. 

Executors  may  be  authorized  to  fulfil  some  trust  under  the  will. 
But  a  general  devise  or  bequest  to  executors  in  trust  vests  no  estate 
in  them  except  for  such  of  the  declared  purposes  as  require  that 
the  title  be  vested  in  them.*  A  trust  confided  in  the  executors  may 
be  presumed  an  enforceable  one  against  them  and  not  a  mere  dis- 
cretionary power.^  And  if  the  purposes  of  the  conditional  gift 
cannot  be  carried  out,  the  gift,  not  being  a  personal  one,  is  void.^ 

All  executors,  trustees  and  other  fiduciaries  are  held  to  a  cer- 

7.  Supra,  §  507,  and  cases  cited.  ownership  of  the  trust  fund,  Ilalsted 

8.  lb.;    Perry    Trusts.    §    920;     149      Re,  137  N.  Y.  S.  433. 

Mass.  22,   14  Am.   St.  Rep.  393,  3  L.  9.  Everitt  v.  Everitt,  29  N.  Y.  39; 

R.  A.  370,  20  N.  E.  454.     See  Wilce  v.  Tompkins   Re,   154  N.   Y.   634,   49   N. 

Van  Anden,  94  N.  E.  42,  248  111.  358,  E.    135;     48    N.    E.    561,    49    N.     E. 

98  N.  E.   21;   253  111.  602    (postpone-  320;    75   N.   E.    149,    189    Mass.    176; 

ment  refused)  ;   Carter  v.  Long,  81  S.  154  N.  Y.  573.     Cf.  Maniere  v.   Wel- 

W.    162,    181   Mo.    701;    Raymond    v.  ling,  78  A.  507,  32  R.  I.  106    (power 

Butts,   95   N.   E.   387,    1154,   84   Ohio  in   trust  given   to   executors   held   no 

St.  51,  491.    The  equitable  owner  of  a  trusteeship)  ;  86  A.  442,  81  N.  J.  Eq. 

fee  of  trust  property  may  devise  the  520    (honest   exercise   of   just   discre- 

property  free  of  a  trust  which  by  the  tion  usually  final). 

terms    of    its    creation   ceases    at   the  1.  Colton  v    Colton,  127  U.  S.  300, 

death  of  the  owner.     80  A.   753,   108  32  L.  Ed.  138 ;  Ingraham  v.  Ingraham, 

M«.    307.      See,    also,    as   to   ultimate  169  111.  432. 

2.  IngcTsoH's  Will,   131   N.  Y.   573. 
819 


§    611  LAW     OF     WILLS.  [pART    VI. 

tain  degree  of  care  and  prudence  in  the  exercise  of  their  duties, 
and  moreover,  must  act  honestly  and  in  good  faith.^  And  since  a 
valid  trust  created  by  a  will  is  its  own  law  trustees  cannot  modify 
at  discretion  even  to  effect  better  results,  and  certainly  not  so 
to  make  a  fiduciary  benefit  their  personal  one.* 

3.  Even  where  a  trustee,  under  the      Smith  v.  Thompson,   (1896)   1  Ch.  71. 
terms  of  a  will,  may  invest   in  such  4.  Upham  v.  Plankinton,  140  N.  W. 

eecurities  "as  he  shall  see  fit,"  this  5,  152  Wis.  275;  Davison  v.  Wyman, 
means  "  as  he  shaU  honestly  see  fit."      100  N.  E.  1105,  214  Mass.  192. 

820 


APPENDIX. 

A.  LEADING  WILLS  ACTS  ENGLISH  AND  AMERICAN.^ 

I.    ENGLISH  STATUTE  1  VICT.  c.  26. 

An  Act  for  the  amendment  of  the  Laws  uAth  respect  to  Wills, 
[3d  July,  1837.] 

Be  it  enacted,  that  the  words  and  expressions  hereinafter  mentioned,  which 
in  their  ordinary  signification  have  a  more  confined  or  a  difiFerent  meaning, 
shall  in  this  act,  except  where  the  nature  of  the  provision  or  the  context  of 
the  act  shall  exclude  such  construction,  be  interpreted  as  follows:    (that  is  to 
say )  the  word  "  will  "  shall  extend  to  a  testament,  and  to  a  codicil,  and  to  an 
appointment  by  will  or  by  writing  in  the  nature  of  a  will  in  exercise  of  a 
power,  and  also  to  a  disposition  by  will  and  testament  or  devise  of  the  custody 
and  tuition  of  any  child,  by  virtue  of  an  act  passed  in  the  twelfth  year  of  the 
reign  of  King  Charles  the  Second,  intituled  An  act  for  taking  away  the  court 
of  ivards  and  liveries  and  tenures,  in  capite  and  hy  knights  service,  and  pur- 
veyance, and  for  settling  a  revenue  upon  his  majesty   in  lieu  thereof,  or  by 
virtue  of  an  act  passed  in  the  parliament  of  Ireland  in  the  fourteenth  and 
fifteenth  years  of  the  reign  of  King  Charles  the  Second,  intituled  An  act  for 
taking  away  the  court  of  wards  and  liveries  and  tenures,  in  capite  and  by 
knights  service,  and  to  any  other  testamentary  disposition;    and   the  words 
"  real  estate "   shall  extend  to  manors,  advowsons,   messuages,   lands,  tithes, 
rents,  and  hereditaments,  whether  freehold,  customary  freehold,  tenant  right, 
customary  or  copyhold,   or   of  any  other   tenure,   and  whether  corporeal,   in- 
corporeal, or  personal,  and  to  any  undivided  share  thereof,  and  to  any  estate, 
right,  or  interest  (other  than  a  chattel  interest)  therein;  and  the  words  "per- 
sonal estate  "  shall  extend  to  leaseliold  estates  and  other  chattels  real,  and 
also  to  moneys,  shares  of  government  and  other  funds,  securities  for  money 
(not  being  real  estates),  debts,  choses  in  action,  rights,  credits,  goods,  and  all 
other  property  whatsoever  which  by  law  devolves  upon  the  executor  or  admin- 
istrator, and  to  any  share  or  interest  therein ;  and  every  word  importing  the 

1  The  Leading  Wills  Acts  here  wills  legislation  of  one  or  another  of 
given  are  those  of  England  and  of  the  four  States  here  selected,  the 
four  of  the  United  States,  viz.:  leading  colonies  before  American  m- 
Massachusetts,  New  York,  Pennsyl-  dependence  was  declared,  ea«h  with 
vania.  and  Virginia.  Tlie  English  its  own  peculiar  traits  and  policy, 
statute  of  1837  marks  a  new  epoch  in  has  most  influenced  the  enactments  of 
the  testamentary  jurisprudence  of  the  the  later  settled  States  and  Tern- 
mother  country.     In  this  country,  the  tories. 

821 


APPENDIX. 

singular  number  only  shall  extend  and  be  applied  to  several  persons  or  things 
as  well  as  one  person  or  thing;  and  every  word  importing  the  masculine 
gender  only  shall  extend  and  be  applied  to  a  female  as  well  as  a  male. 

II.  And  be  it  further  enacted,  that  an  act  passed  in  the  thirty-second  year 
of  the  reign  of  King  Henry  the  Eighth,  intituled  The  act  of  tvills,  wards,  and 
primer  seisins,  ivherehy  a  man  may  deinse  two  parts  of  his  land;  and  also  an 
act  passed  in  the  thirty-fourth  and  thirty-fifth  years  of  the  reign  of  the  said 
King  Henry  the  Eighth,  intituled  The  bill  concerning  the  explanation  of  wills; 
and  also  an  act  passed  in  the  parliament  of  Ireland,  in  the  tenth  year  of  the 
reign  of  King  Charles  the  First,  intituled  An  act  how  lands,  tenements,  etc., 
may  be  disposed  by  will  or  otherwise  and  concerning  wards  and  primer  seisins; 
and  also  so  much  of  an  act  passed  in  the  twenty-ninth  year  of  the  reign  of 
King  Charles  the  Second,  intituled  An  act  for  prevention  of  frauds  and  per- 
juries, and  of  an  act  passed  in  the  pailiament  of  Ireland  in  the  seventh  year 
of  the  reign  of  King  William  the  Third,  intituled  An  act  for  prevention  of 
frauds  and  perjuries,  as  relates  to  devises  or  bequests  of  lands  or  tenements,  or 
to  the  revocation  or  alteration  of  any  devise  in  writing  of  any  lands,  tene- 
ments, or  hereditaments,  or  any  clause  thereof,  or  to  the  devise  of  any  estate 
pur  autre  vie,  or  to  any  such  estates  being  assets,  or  to  nuncupative  wills,  or 
to  the  repeal,  altering,  or  changing  of  any  will  in  writing  concerning  any  goods 
or  chattels  or  personal  estate,  or  any  clause,  devise,  or  bequest  therein :  and 
also  so  much  of  an  act  passed  in  the  fourth  and  fifth  years  of  the  reign  of 
Queen  Anne,  intituled  An  act  for  the  amendment  of  the  law  and  the  better 
advancement  of  justice,  and  of  an  act  passed  in  the  parliament  of  Ireland  in 
the  sixth  year  of  the  reign  of  Queen  Anne,  intituled  An  act  for  the  amendment 
of  the  law  and  the  better  advancement  of  justice,  as  relates  to  witnesses  to 
nuncupative  wills;  and  also  so  much  of  an  act  passed  in  the  fourteenth  year 
of  the  reign  of  King  George  the  Second,  intituled  An  act  to  amend  the  law 
concerning  common  recoveries,  and  to  explain  and  amend  an  act  made  in  the 
twenty-ninth  year  of  the  reign  of  King  Charles  the  Second,  intituled  "An  act 
for  prevention  of  frauds  and  perjuries,"  as  relates  to  estates  pur  autre  vie; 
and  also  an  act  passed  in  the  twenty-fifth  year  of  the  reign  of  King  George  the 
Second,  intituled  An  act  for  avoiding  and  putting  an  end  to  certain  doubts 
and  questions  relating  to  the  attestation  of  wills  and  codicils  concerning  real 
estates  in  that  part  of  Great  Britain  called  England,  and  in  his  majesty's 
colonies  and  plantations  in  America,  except  so  far  as  relates  to  his  majesty's 
colonies  and  plantations  in  America ;  and  also  an  act  passed  in  the  parliament 
of  Ireland  in  the  same  twenty-fifth  year  of  the  reign  of  King  George  the 
Sec(jnd,  intituled  An  act  for  the  avoiding  and  putting  an  end  to  certain  doubts 
and  (fitestions  relating  to  the  attestations  of  wills  and  codicils  concerning  real 
estates;  and  also  an  act  passed  in  the  fifty-fifth  year  of  the  reign  of  King 
George  tlie  Third,  intituled  An  act  to  remove  certain  difficulties  in  the  dis- 
position of  copyhold  estates  by  will,  shall  be  and  the  same  are  hereby  repealed, 
except  so  far  as  the  same  acts  or  any  of  them  respectivelj'  relate  to  any  wills 
or  estates  ptir  autre  vie,  to  which  this  act  does  not  extend. 

III.  And  bo  it  further  enacted,  tliat  it  shall  be  lawful  for  every  person  to 

822 


LEADING  WILLS  ACTS. 

devise,  bequeath,  or  dispose  of,  by  his  will  executed  in  manner  hereinafter 
required,  all  real  estate  and  all  personal  estate  which  he  shall  be  entitled  to, 
either  at  law  or  in  equity,  at  the  time  of  his  death,  and  which,  if  not  so  de- 
vised, bequeathed,  or  disposed  of,  would  devolve  upon  the  heir-at-law,  or 
customary  heir  of  him,  or,  if  he  became  entitled  by  descent,  of  his  ancestor,  or 
upon  his  executor  or  administrator;  and  that  tlie  power  hereby  given  shall 
extend  to  all  real  estate  of  the  nature  of  customary  freehold  or  tenant  right, 
or  customary  or  copyhold,  notwithstanding  that  the  testator  may  not  have 
surrendered  the  same  to  the  use  of  his  will,  or  notwithstanding  that,  being 
entitled  as  heir,  devisee,  or  otherwise,  to  be  admitted  thereto,  he  shall  not  have 
been  admitted  thereto,  or  notwithstanding  that  the  same,  in  consequence  of 
the  want  of  a  custom  to  devise  or  surrender  to  the  use  of  a  will  or  otherwise, 
could  not  at  law  have  been  disposed  of  by  will  if  this  act  had  not  been  made, 
or  notwithstanding  that  the  same,  in  consequence  of  there  being  a  custom  that 
a  will  or  a  surrender  to  the  use  of  a  will  should  continue  in  force  for  a  limited 
time  only,  or  any  other  special  custom,  could  not  have  been  disposed  of  by 
will  according  to  the  power  contained  in  tliis  act,  if  this  act  had  not  been 
made;  and  also  to  estates  ptir  autre  vie,  whether  there  shall  or  shall  not  be 
any  special  occupant  thereof,  and  whether  the  same  shall  be  freehold,  custom- 
ary freehold,  tenant  right,  customary  or  copjiiold,  or  of  any  other  tenure,  and 
whether  the  same  shall  be  a  corporeal  or  an  incorporeal  hereditament;  and 
also  to  all  contingent,  executory,  or  other  future  interests  in  any  real  or  per- 
sonal estate,  whether  the  testator  may  or  may  not  be  ascertained  as  the  person 
or  one  of  the  persons  in  whom  the  same  respectively  may  become  vested,  and 
whether  he  may  be  entitled  thereto  under  the  instrument  by  which  tlie  same 
respectively  were  created  or  under  any  disposition  thereof  by  deed  or  will; 
and  also  to  all  rights  of  entry  for  conditions  broken,  and  other  rights  of  entry ; 
and  also  to  such  of  the  same  estates,  interests,  and  rights  respectively,  and 
other  real  and  personal  estate  as  the  testator  may  be  entitled  to  at  the  time 
of  his  death,  notwithstanding  that  he  may  become  entitled  to  the  same  subse- 
quently to  the  execution  of  his  will. 

IV.z  Provided,  always,  and  be  it  further  enacted,  that  where  any  real  estate 
of  the  nature  of  customary  freehold  or  tenant  riglit,  or  customary  or  copyhold, 
might  by  the  custom  of  the  manor  of  which  the  same  is  holden,  have  been 
surrendered  to  tlie  use  of  a  will,  and  the  testator  shall  not  have  surrendered 
the  same  to  the  use  of  his  will,  no  person  entitled  or  claiming  to  be  entitled 
thereto  by  virtue  of  such  will,  shall  be  entitled  to  be  admitted,  except  upon 
payment  of  all  such  stamp  duties,  fees,  and  sums  of  money  as  would  have  been 
lawfully  due  and  payable  in  respect  of  the  surrendering  of  such  real  estate  to 
tlie  use  of  the  will,  or  in  respect  of  presenting,  registering,  or  enrolling  such 
surrender,  if  the  same  real  estate  had  been  surrendered  to  the  use  of  the  will 
of  such  testator:  Provided  also,  that  where  the  testator  was  entitled  to  have 
been  admitted  to  such  real  estate,  and  might  if  he  had  been  admitted  thereto, 
have  surrendered  the  same  to  the  use  of   his  will,  and  sliall  not  have  been 

2.  See  4  &  5  Vict.  c.  35,  §§   88-90. 

823 


APPENDIX. 

admitted  thereto,  no  person  entitled  or  claiming  to  be  entitled  to  such  estate 
in  consequence  of  such  will  shall  be  entitled  to  be  admitted  to  the  same  real 
estate  by  virtue  thereof,  except  on  payment  of  all  such  stamp  duties,  fees,  fine, 
and  sums  of  money  as  would  have  been  lawfully  due  and  payable  in  respect  of 
the  admittance  of  such  testator  to  such  real  estate,  and  also  of  all  such  stamp 
duties,  fees,  and  sums  of  money  as  would  have  been  lawfully  due  and  payable 
in  respect  of  surrendering  such  real  estate  to  the  use  of  the  will,  or  of  present- 
ing, registering,  or  enrolling  such  surrender,  had  the  testator  been  duly  ad- 
mitted to  such  real  estate,  and  afterwards  surrendered  the  same  to  the  use 
of  his  will;  all  which  stamp  duties,  fees,  fine,  or  sums  of  money  due  as  afore- 
said shall  be  paid  in  addition  to  the  stamp  duties,  fees,  fine,  or  sums  of  money 
due  or  payable  on  the  admittance  of  such  person  so  entitled  or  claiming  to  be 
entitled  to  the  same  real  estate  as  aforesaid. 

V.  And  be  it  further  enacted,  that  when  any  real  estate  of  the  nature  of 
customary  freehold  or  tenant  right,  or  customary  or  copyhold,  shall  be  dis- 
posed of  by  will,  the  lord  of  the  manor  or  reputed  manor  of  which  such  real 
estate  is  holden,  or  his  steward,  or  the  deputy  of  such  steward,  shall  cause  the 
will  by  which  such  disposition  shall  be  made,  or  so  much  thereof  as  shall 
contain  the  disposition  of  such  real  estate,  to  be  entered  on  the  court  rolls  of 
such  manor  or  reputed  manor;  and  when  any  trusts  are  declared  by  the  will 
of  such  real  estate,  it  shall  not  be  necessary  to  enter  the  declaration  of  such 
trusts,  but  it  shall  be  sufficient  to  state  in  the  entry  on  the  court  rolls  that 
such  real  estate  is  subject  to  the  trusts  declared  by  such  will;  and  when  any 
such  real  estate  could  not  have  been  disposed  of  by  will  if  this  act  had  not 
been  made,  the  same  fine,  heriot,  dues,  duties,  and  services  shall  be  paid  and 
rendered  by  the  devisee  as  would  have  been  due  from  the  customary  heir  in 
case  of  the  descent  of  the  same  real  estate,  and  the  lord  shall  as  against  the 
devisee  of  such  estate  have  the  same  remedy  for  recovery  and  enforcing  such 
fine,  heriot,  dues,  duties,  and  services  as  he  is  now  entitled  to  for  recovering 
and  enforcing  the  same  from  or  against  the  customary  heir  in  case  of  a  descent. 

VI.  And  be  it  further  enacted,  that  if  no  disposition  by  will  shall  be  made 
of  any  estate  pur  autre  vie  of  a  freehold  nature,  the  same  shall  be  chargeable 
in  the  hands  of  the  heir,  if  it  shall  come  to  him  by  reason  of  special  occupancy, 
as  assets  by  descent  as  in  the  case  of  freehold  land  in  fee  simple;  and  in  case 
there  shall  be  no  special  occupant  of  any  estate  pur  autre  vie,  whether  freehold 
or  customary  freehold,  tenant  right,  customary  or  copyhold,  or  of  any  other 
tenure,  and  whether  a  corporeal  or  incorporeal  hereditament,  it  shall  go  to 
the  executor  or  administrator  of  the  party  that  had  the  estate  thereof  by 
virtue  of  the  grant;  and  if  the  same  shall  come  to  the  executor  or  adminis- 
trator either  by  reason  of  a  special  occupancy  or  by  virtue  of  this  act,  it 
shall  be  assets  in  his  hands,  and  shall  go  and  be  applied  and  distributed  in 
the  same  manner  as  the  personal  estate  of  the  testator  or  intestate. 

VII.  And  be  it  further  enacted,  that  no  will  made  by  any  person  under  the 
age  of  twenty-one  years  shall  be  valid. 

VIII.  Provided  also,  and  be  it  further  enacted,  that  no  will  made  by  anv 

824 


LEAPING  WILLS   ACTS. 

married  woman  shall  be  valid,  except  such  a  will  as  might  have  been  made- 
by  a  married  woman  before  the  passing  of  this  act. 

IX.  And  be  it  further  enacted,  that  no  will  shall  be  valid  unless  it  shall  be 
in  writing  and  executed  in  manner  hereinafter  mentioned;  (that  is  to  say), 
it  shall  be  signed  at  the  foot  or  end  thereof  by  the  testator,  or  by  some  other 
person  in  his  presence  and  by  his  direction;  and  such  signature  shall  be  made 
or  acknowledged  by  the  testator  in  the  presence  of  two  or  more  witnesses 
present  at  the  same  time,  and  such  witnesses  shall  attest  and  shall  subscribe 
the  will  in  the  presence  of  the  testator,  but  no  form  of  attestation  shall  be 
nceessary. 

X.  And  be  it  further  enacted,  that  no  appointment  made  by  will,  in  exercise 
of  any  power,  shall  be  valid,  unless  the  same  be  executed  in  manner  herein- 
before required ;  and  every  will  executed  in  manner  hereinbefore  required  shall, 
so  far  as  respects  the  execution  and  attestation  thereof,  be  a  valid  execution 
of  a  power  of  appointment  by  will,  notwithstanding  it  shall  have  been  ex- 
pressly required  that  a  will  made  in  exercise  of  such  power  should  be  executed 
with  some  additional  or  other  form  of  execution  or  solemnity. 

XI.  Provided  always,  and  be  it  further  enacted,  that  any  soldier  being  in 
actual  military  service,  or  any  mariner,  or  seaman  being  at  sea,  may  dispose 
of  his  personal  estate  as  he  might  have  done  before  the  making  of  this  act. 

XII.  And  be  it  further  enacted,  that  this  act  shall  not  prejudice  or  aflfect 
any  of  the  provisions  contained  in  an  act  passed  in  the  eleventh  year  of  the 
reign  of  his  majesty  King  George  the  Fourth,  and  the  first  year  of  the  reign 
of  his  late  majesty  King  William  the  Fourth,  intituled  An  act  to  amend  and 
consolidate  the  laics  relating  to  the  pay  of  the  royal  navy,  respecting  the  wills 
of  petty  officers  and  seamen  in  the  royal  navy,  and  non-commissioned  officers 
of  marines,  and  marines,  so  far  as  relates  to  their  wages,  pay,  prize  money, 
bounty  money,  and  allowances,  or  other  moneys  payable  in  respect  to  services 
in  her  majesty's  navy. 

XIII.  And  be  it  further  enacted,  that  every  will  executed  in  manner  herein- 
before required  shall  be  valid  without  any  other  publication  thereof. 

XIV.  And  be  it  further  enacted,  that  if  any  person  who  shall  attest  the 
execution  of  a  will  shall  at  the  time  of  the  execution  thereof  or  at  any  time 
afterwards  be  incompetent  to  be  admitted  a  witness  to  prove  the  execution 
thereof,  such  will  shall  not  on  that  account  be  invalid. 

XV.  And  be  it  further  enacted,  that  if  any  person  shall  attest  the  execution 
of  anv  will  to  whom  or  to  whose  wife  or  husband  any  beneficial  devise,  legacy, 
estate,  interest,  gift,  or  appointment,  of  or  affecting  any  real  or  personal  estate 
(other  than  and  except  charges  and  directions  for  the  payment  of  any  debt  or 
debts),  shall  be  thereby  given  or  made,  such  devise,  legacy,  estate,  interest, 
gift,  or  appointment  shall,  so  far  only  as  concerns  such  person  attesting  the 
execution  of  such  will,  or  the  wife  or  husband  of  such  parson  or  any  person, 
claiming  under  such  person  or  wife  or  husband,  be  utterly  null  and  void,  and 
such  person  so  attesting  shall  be  admitted  as  a  witness  to  prove  the  execution 
of  such  will,  or  to  prove  the  validity  or  invalidity  thereof,  notwithstanding. 

825 


APPEITDIX. 

such  devise,  legacy,  estate,  interest,  gift,  or  appointment,  mentioned  in  such 
will. 

XVI.  And  be  it  further  enacted,  that  in  case  by  any  will  any  real  or  personal 
estate  shall  be  charged  with  any  debt  or  debts,  and  any  creditor,  or  the  wife  or 
husband  of  any  creditor,  whose  debt  is  so  charged,  shall  attest  the  execution  of 
such  will,  such  creditor  notwithstanding  such  charge  shall  be  admitted  a 
witness  to  prove  the  execution  of  such  will,  or  to  prove  the  validity  or  in- 
validity thereof. 

XVII.  And  be  it  further  enacted,  that  no  person  shall,  on  account  of  his 
being  an  executor  of  a  will,  be  incompetent  to  be  admitted  a  witness  to  prove 
the  execution  of  such  will,  or  a  witness  to  prove  the  validity  or  invalidity 
thereof. 

XVIII.  And  be  it  further  enacted,  that  every  will  made  by  a  man  or 
Avoman  shall  be  revoked  by  his  or  her  marriage  (except  a  will  made  in  exercise 
of  a  power  of  appointment,  when  the  real  or  personal  estate  thereby  appointed 
would  not  in  default  of  such  appointment  pass  to  his  or  her  heir,  customary 
heir,  executor,  or  administrator,  or  tlie  person  entitled  as  his  or  her  next  of 
kin,  under  the  statute  of  distributions). 

XIX.  And  be  it  further  enacted,  that  no  will  shall  be  revoked  by  any  pre- 
sumption of  an  intention  on  the  ground  of  an  alteration  in  circumstances. 

XX.  And  be  it  further  enacted,  that  no  will  or  codicil,  or  any  part  thereof, 
shall  be  revoked  otherwise  than  as  aforesaid,  or  by  another  will  or  codicil 
executed  in  manner  hereinbefore  required,  or  by  some  writing  declaring  an 
intention  to  revoke  the  same,  and  executed  in  the  manner  in  which  a  will  is 
hereinbefore  required  to  be  executed,  or  by  the  burning,  tearing,  or  otherwise 
destroying  the  same  by  the  testator,  or  by  some  person  in  his  presence  and 
by  his  direction,  with  tlie  intention  of  revoking  the  same. 

XXI.  And  be  it  further  enacted,  that  no  obliteration,  interlineation,  or  other 
alteration  made  in  any  will,  after  the  execution  thereof,  shall  be  valid  or  have 
any  effect  except  so  far  as  the  words  or  effect  of  the  will  before  such  alteration 
shall  not  be  apparent,  unless  such  alteration  shall  be  executed  in  like  manner 
as  hereinbefore  is  required  for  the  execution  of  the  will;  but  the  will,  with 
such  alteration  as  part  thereof,  shall  be  deemed  to  be  duly  executed  if  the 
signature  of  the  testator  and  the  subscription  of  the  witnesses  be  made  in  the 
margin,  or  on  some  other  part  of  the  will  opposite  or  near  to  sucli  alteration, 
or  at  the  foot  or  end  of  or  opposite  to  a  memorandum  referring  to  such 
alteration,  and  written  at  the  end  or  some  other  part  of  the  will. 

XXII.  And  be  it  further  enacted,  that  no  will  or  codicil  or  any  part  thereof, 
which  shall  be  in  any  manner  revoked,  sliall  be  revived  otherwise  than  by  the 
re-execution  thereof,  or  by  a  codicil  executed  in  manner  hereinbefore  required, 
and  showing  an  intention  to  revive  the  same;  and  when  any  will  or  codicil 
which  shall  be  partly  revoked,  and  afterwards  wholly  revoked,  sliall  be  revived, 
such  revival  shall  not  extend  to  so  much  thereof  as  shall  have  been  revokrd  be- 
fore the  revocation  of  the  whole  thereof,  unless  an  intention  to  the  contrary 
shall  be  shown. 

XXIII.  .4ind  be  it  further  enacted,  that  no  conveyance  or  other  act  made  or 

826 


LEADING   WILLS   ACTS. 

done  subsequently  to  the  execution  of  a  will  of  or  relating  to  any  real  or  per- 
sonal estate  therein  comprised,  except  an  act  by  whicli  such  will  shall  be  re- 
voked as  aforesaid,  shall  prevent  the  operation  of  the  will  with  respect  to  such 
estate  or  interest  in  such  real  or  personal  estate  as  the  testator  shall  have 
power  to  dispose  of  by  will  at  the  time  of  his  death. 

XXIV.  And  be  it  further  enacted,  that  every  will  shall  be  construed,  with 
reference  to  the  real  estate  and  personal  estate  comprised  in  it,  to  speak  and 
take  effect  as  if  it  had  been  executed  immediately  before  the  death  of  the 
testator,  unless  a  contrary  intention  shall  appear  by  the  will. 

XXV.  And  be  it  further  enacted,  that,  unless  a  contrary  intention  shnll  ap 
pear  by  the  will,  such  real  estate  or  interest  therein  as  shall  be  comprised  or 
intended  to  be  comprised  in  any  devise  in  such  will  contained,  which  shall  fail 
or  be  void  by  reason  of  the  death  of  the  devisee  in  the  lifetime  of  the  testator, 
or  by  reason  of  such  devise  being  contrary  to  law  or  otherwise  incapable  of 
taking  effect,  shall  be  included  in  the  residuary  devise  (if  any)  contained  in 
such  will. 

XXVI.  And  be  it  further  enacted,  that  a  devise  of  the  land  of  the  testator, 
or  of  the  land  of  the  testator  in  any  place  or  in  the  occupation  of  anj'  person 
mentioned  in  his  will,  or  otherwise  described  in  a  general  manner,  and  any 
other  general  devise  which  would  describe  a  customary,  copyhold,  or  leasehold 
estate  if  the  testator  had  no  freehold  estate  which  could  be  described  by  it, 
shall  be  construed  to  include  the  customary,  copyhold,  and  leasehold  estates  of 
the  testator,  or  his  customary,  copyhold,  and  leasehold  estates,  or  any  of  them, 
to  which  such  description  shall  extend,  as  the  case  may  be,  as  well  as  free- 
hold estates,  unless  a  contrary  intention  shall  appear  by  the  will. 

XXVII.  And  be  it  further  enacted,  that  a  general  devise  of  the  real  estate 
of  the  testator,  or  of  the  real  estate  of  the  testator  in  any  place  or  in  the  oc- 
cupation of  any  person  mentioned  in  his  will,  or  otherwise  described  in  a  gen- 
eral manner,  shall  be  construed  to  include  any  real  estate,  or  any  real  estate 
to  which  such  description  shall  extend  (as  the  case  may  be),  which  he  may 
have  power  to  appoint  in  any  manner  he  may  think  proper,  and  shall  operate 
as  an  execution  of  such  power,  unless  a  contrary  intention  shall  appear  by  the 
will;  and  in  like  manner  a  bequest  of  the  personal  estate  of  the  testator,  or 
any  bequest  of  personal  property  described  in  a  general  manner,  shall  be  con- 
strued to  include  any  personal  estate,  or  any  personal  estate  to  which  such 
description  shall  extend  (as  the  case  may  be),  which  he  may  have  power  to 
appoint  in  any  manner  he  may  think  proper,  and  shall  operate  as  an  execu- 
tion of  such  power,  unless  a  contrary  intention  shall  appear  by  the  will. 

XXVIII.  And  be  it  further  enacted,  that  where  any  real  estate  shall  be  de- 
vised to  any  person  without  any  words  of  limitation,  such  devise  shall  be  con- 
strued to  pass  the  fee  simple,  or  other  the  whole  estate  or  interest  which  the 
testator  had  power  to  dispose  of  by  will  in  such  real  estate,  unless  a  contrary 
intention  shall  appear  by  the  will. 

XXIX.  And  be  it  further  enacted,  that  in  any  devise  or  bequest  of  real  or 
personal  estate  the  words  "  die  without  issue,"  or  "  die  without  leaving  issue," 

827 


APPENDIX. 

or  "  hare  no  issue,"  or  any  other  words  which  may  import  either  a  want  or 
failure  of  issue  of  any  person  in  his  lifetime  or  at  the  time  of  his  death,  or  an 
indefinite  failure  of  his  issue,  shall  be  construed  to  mean  a  want  or  failure  of 
issue  in  the  lifetime  or  at  the  time  of  the  death  of  such  person,  and  not  an 
indefinite  failure  of  his  issue,  unless  a  contrary  intention  shall  appear  by  the 
will,  by  reason  of  such  person  having  a  prior  estate  tail,  or  of  a  preceding  gift 
being,  without  any  implication  arising  from  such  words,  a  limitation  of  an 
estate  tail  to  such  person  or  issue,  or  otherwise:  Provided,  that  this  act  shall 
not  extend  to  cases  where  such  words  as  aforesaid  import  if  no  issue  described 
in  a  preceding  gift  shall  be  born,  or  if  there  shall  be  no  issue  who  shall  live  to 
attain  the  age  or  otherwise  answer  the  description  required  for  obtaining  a 
vested  estate  by  a  preceding  gift  to  such  issue. 

XXX.  And  be  it  further  enacted,  that  where  any  real  estate  (other  than  or 
not  being  a  presentation  to  a  church )  shall  be  devised  to  any  trustee  or  execu- 
tor, such  devise  shall  be  construed  to  pass  the  fee  simple  or  other  the  whole 
estate  or  interest  which  the  testator  had  power  to  dispose  of  by  will  in  such 
real  estate,  unless  a  definite  term  of  years,  absolute  or  determinable,  or  an 
estate  of  freehold,  shall  thereby  be  given  to  him  expressly  or  by  implication. 

XXXI.  And  be  it  further  enacted,  that  where  any  real  estate  shall  be  de- 
vised to  a  trustee,  without  any  express  limitation  of  the  estate  to  be  taken  by 
such  trustee,  and  the  beneficial  interest  in  such  real  estate,  or  in  the  surplus 
rents  and  profits  thereof,  shall  not  be  given  to  any  person  for  life,  or  such 
beneficial  interest  shall  be  given  to  any  person  for  life,  but  the  purposes  of 
the  trust  may  continue  beyond  the  life  of  such  person,  such  devise  shall  be 
construed  to  vest  in  such  trustee  the  fee  simple,  or  other  the  whole  legal  estate 
which  the  testator  had  power  to  dispose  of  by  will  in  such  real  estate,  and  not 
an  estate  determinable  when  the  purposes  of  the  trust  shall  be  satisfied. 

XXXII.  And  be  it  further  enacted,  that  where  any  person  to  whom  any  real 
estate  shall  be  devised  for  an  estate  tail  or  an  estate  in  quasi  entail  shall  die 
in  the  lifetime  of  the  testator  leaving  issue  who  would  be  inheritable  under 
such  entail,  and  any  such  issue  shall  be  living  at  the  time  of  the  death  of  the 
testator,  such  devise  shall  not  lapse,  but  shall  take  effect  as  if  the  death  of 
such  person  had  happrned  immediately  after  the  death  of  the  testator,  unless 
a  contrary  intention  shall  appear  by  the  will. 

XXXIII.  And  be  it  further  enacted,  that  where  any  person  being  a  child  or 
other  issue  of  the  testator  to  whom  any  real  or  personal  estate  shall  be  de- 
vised or  bequeathed  for  any  estate  or  interest  not  determinable  at  or  before 
the  death  of  such  person  shall  die  in  the  lifetime  of  the  testator  leaving  issue, 
and  any  such  issue  of  such  person  shall  be  living  at  the  time  of  the  death  of 
the  testator,  such  devise  or  bequest  shall  not  lapse,  but  shall  take  effect  as  if 
the  death  of  such  person  had  happened  immediately  after  the  death  of  the 
testator,  unless  a  contrary  intention  shall  appear  by  the  will. 

XXXIV.  And  be  it  further  enacted,  that  this  act  shall  not  extend  to  any  will 
made  before  the  first  day  of  January,  one  thousand  eiglit  liundred  and  thirty- 
eight,  and  that  every  will  re-executed  or  republished,  or  revived  by  any  codicil, 

828 


LEADING  WILLS   ACTS. 

shall  for  the  purposes  of  this  act  be  deemed  to  have  been  made  at  the  time  at 
which  the  same  shall  be  so  re-executed,  republished,  or  revived;  and  that  this 
act  shall  not  extend  to  any  estate  pur  autre  vie  of  any  person  who  shall  die 
before  the  first  day  of  January,  one  thousand  eight  hundred  and  thirty-eight. 

XXXV.  And  be  it  further  enacted,  that  this  act  shall  not  extend  to  Scot- 
land. 

XXXVI.  And  be  it  further  enacted,  that  this  act  may  be  amended,  altered, 
or  repealed  by  any  act  or  acts  to  be  passed  in  this  present  session  of  parlia- 
ment. 

II.  MASSACHUSETTS  WILLS  ACT.3 

§  1.  Every  person  of  full  age  and  sound  mind  may  by  his  last  will  in  writ- 
ing, signed  by  him  or  by  some  person  in  his  presence  and  by  his  express  direc- 
tion, and  attested  and  subscribed  in  his  presence  by  three  or  more  competent 
witnesses,  dispose  of  his  estate,  real  and  personal,  excepting  an  estate  tail, 
and  excepting  also  as  is  provided  in  chapters  123  and  124  [i.  e.,  except  as  to 
homesteads  and  certain  rights  of  a  husband  in  his  deceased  wife's  real  estate, 
and  of  a  wife  in  her  deceased  husband's  real  estate]  and  in  §  6  of  chapter  147 
[which  permits  a  married  woman  to  make  a  will,  but  restrains  her  from  de- 
priving her  husband  of  his  tenancy  by  the  curtesy,  or  of  more  than  one-half 
of  her  personal  estate  without  his  written  consent]. 

§  2.  If  a  witness  to  a  will  is  competent  at  the  time  of  his  attestation,  his 
subsequent  incompetency  shall  not  prevent  the  probate  and  allowance  of  such 
will,  nor  shall  a  mere  charge  on  the  lands  of  the  testator  for  the  payment  of 
ihis  debts  prevent  his  creditors  from  being  competent  witnesses  to  his  will. 

§  3.  A  beneficial  devise  or  legacy  made  in  a  will  to  a  person  who  is  a  sub- 
scribing witness  thereto,  or  to  the  husband  or  wife  of  such  a  person,  shall  be 
void  unless  there  are  three  other  competent  subscribing  witnesses  to  such  will. 

§  4.  A  will  made  and  executed  in  conformity  with  the  law  existing  at  the 
time  of  its  execution  shall  be  equally  effectual  as  if  made  pursuant  to  the  pro- 
visions of  this  chapter. 

§  5.  A  will  made  out  of  the  commonwealth,  and  which  is  valid  according  to 
the  laws  of  the  state  or  country  where  it  was  made,  may  be  proved  and  allowed 
in  this  commonwealth,  and  shall  thereupon  have  the  same  eff'ect  that  it  would 
ihave  had  if  executed  according  to  the  laws  of  this  commonwealth. 

§  6.  A  soldier  in  actual  military  service  or  a  mariner  at  sea  may  dispose  of 
his  personal  estate  by  a  nuncupative  will. 

§  7.  No  will,  except  such  as  is  mentioned  in  this  chapter,  shall  be  effectual  to 
pass  any  estate,  real  or  personal,  or  to  change  or  in  any  way  affect  the  same ; 
and  no  will  shall  take  effect  until  it  has  been  duly  proved  and  allowed  in  the 
probate  court.  Such  probate  shall  be  conclusive  as  to  the  due  execution  of  the 
will. 

3.  See  Mass.  Public  Statutes    (1882),  c.  127. 

829 


APPENDIX. 

§  8.  No  will  shall  be  revoked  unless  by  the  burning,  tearing,  cancplling.  or 
oblit-erating  the  same,  with  the  intention  of  revoking  it,  by  the  testator  him- 
self or  by  some  person  in  his  presence  and  by  his  direction;  or  by  some  other 
writing  signed,  attested  and  subscribed  in  the.  same  manner  that  is  required 
in  the  case  of  a  will;  but  nothing  contained  in  this  section  shall  prevent  the 
revocation  implied  by  law  from  subsequent  changes  in  the  conditions  or  cir- 
cumstances of  the  testator. 

[The  word  "will"  shall  include  codicils  as  used  above.  See  Mass,  Pub. 
Stats.   (1882)   c.  3,  §  3,  pi.  24.] 

III.    NEW  YORK  WILLS  ACT.4 

§  1.  All  persons,  except  idiots,  persons  of  unsound  mind,  and  infants,  may 
devise  their  real  estate,  by  a  last  will  and  testament,  duly  executed  according 
to  the  provisions  of  this  title. 

§  2.  Every  estate  and  interest  in  real  property  descendible  to  heirs,  may  be 
Bo  devised. 

§  3.  Such  devise  may  be  made  to  every  person  capable  by  law  of  holding  real 
estate;  but  no  devise  to  a  corporation  shall  be  valid,  unless  such  corporation 
be  expressly  authorized  by  its  charter,  or  by  statute,  to  take  by  devise. 

[§  4.  Devises  to  aliens.] 

[§  5.  Will  of  real  estate  denoting  intent  to  devise  all  one's  real  property, 
shall  be  construed  to  pass  all  he  is  entitled  to  devise  at  the  time  of  his  death.] 

[§§  6-20  repealed.] 

§  21.  Every  male  person  of  the  age  of  eighteen  years  or  upwards,  and  every 
female  of  the  age  of  sixteen  years  or  upwards,  of  sound  mind  and  memory,, 
and  no  others,  may  give  and  bequeath  his  or  her  personal  estate,  by  will  in 
writing. 

§  22.  No  nuncupative  or  unwritten  will,  bequeathing  personal  estate,  shall 
be  vali4,  unless  made  by  a  soldier  while  in  actual  military  service,  or  by  a 
mariner  while  at  sea. 

§  40.  Every  last  will  and  testament  of  real  or  personal  property,  or  both, 
shall  be  executed  and  attested  in  the  following  manner: 

1.  It  shall  be  subscribed  by  the  testator  at  the  end  of  the  will. 

2.  Such  subscription  shall  be  made  by  the  testator,  in  the  presence  of  each 
of  the  attesting  witnesses,  or  shall  be  acknowledged  by  him  to  have  been  so 
made  to  each  of  the  attesting  witnesses. 

3.  The  testator,  at  the  time  of  making  such  subscription,  or  at  the  time  of 
acknowledging  the  same,  shall  declare  the  instrument  so  subscribed  to  be  his 
last  will  and  testament. 

4.  There  shall  be  at  least  two  attesting  witnesses,  each  of  whom  shall  sign 
his  name  as  a  witness,  at  the  end  of  the  will,  at  the  request  of  the  testator. 

4.  Taken  from  "  New  York  Revised 
Statutes,"  Throop's  7th  edition,  1882, 
Vol.  III.  Pt.  2,  c.  6. 

830 


LEAniNG   WILLS   ACTS. 

§  41.  The  witnesspB  in  any  will  shall  write  opposite  to  their  names  their 
rt^speetive  places  of  residence;  and  every  person  who  shall  sign  the  testator's 
name  to  any  will  by  his  direction  shall  write  his  own  name  as  a  witness  to  the 
will.  Whoever  shall  neglect  to  comply  with  either  of  these  provisions,  shall 
forfeit  fifty  dollars,  to  be  recovered  by  any  person  interested  in  the  property 
devised  or  bequeathed,  who  shall  sue  for  the  same.  Such  omission  shall  not 
affect  the  validity  of  any  will;  nor  shall  any  person  liable  to  the  penalty  afore- 
said, be  excused  or  incapacitated  on  that  account,  from  testifying  respecting 
the  execution  of  such  will. 

§  42.  No  will  in  writing,  except  in  the  cases  hereinafter  mentioned,  nor  any 
part  thereof,  shall  be  revoked  or  altered,  otherwise  tiian  by  some  other  will  in 
writing,  or  some  other  writing  of  the  testator,  declaring  such  revocation  or 
alteration,  and  executed  with  the  same  formalities  with  which  the  will  itself 
was  required  by  law  to  be  executed;  or  unless  such  will  be  burnt,  torn,  can- 
celled, obliterated,  or  destroyed,  with  the  intent  and  for  the  purpose  of  revoking 
the  same,  by  the  testator  himself,  or  by  another  person  in  his  presence,  by  his 
direction  and  consent;  and  when  so  done  by  another  person,  the  direction  and 
consent  of  the  testator,  and  the  fact  of  such  injury  or  destruction,  shall  b? 
proved  by  at  least  two  witnesses. 

[(§  43.)  The  excepted  cases  which  follow  provide  for  the  revocation  of  a 
will,  which  disposes  of  the  whole  estate,  by  subsequent  marriage  of  the  testa- 
tor, and  the  birth  of  issue,  where  wife  or  the  issue  shall  be  living  at  the  testa- 
tor's death,  and  is  unprovided  for,  unless  so  mentioned  in  the  will  as  to  show 
an  intention  to  make  no  provision. 

(§  44.)    Will  of  unmarried  woman  revoked  by  her  subsequent  marriage. 

(§  45.)  Bond,  etc,  to  convey  property,  devised  or  bequeathed,  not  a  revoca- 
tion. 

(§  46.)  Charge  or  incumbrance  upon  real  or  personal  estate  not  a  revoca- 
tion. 

(§§  47,48.)    Conveyance,  settlement,  etc.,  when  to  be  deemed  a  revocation. 

(§  49.)   After-born  child,  if  unprovided  for,  to  have  portion  of  estate. 

(§  50.)   Devisee  or  legatee  may  witness  will,  but  devise  to  him  void. 

(§  51.)   Except  that  share  of  estate  is  saved  to  such  witness  in  certain  cases. 

(§  52.)   Devises  or  bequests  in  certain  cases  not  to  lapse. 

(§  53.)    Cancelling  of  second  will  not  to  revive  first,  except,  etc. 

(§  69.)  Provision  as  to  act  going  into  effect  concerning  revocation;  and 
(§  70)    prior  wills  not  aflTected. 

(§  71.)   "Wills"  in  this  chapter  to  include  "codicils."] 

IV.    PENNSYLVANIA  WILLS  ACTS.5 

§  1.  Every  person  of  sound  mind  [married  women  excepted]  may  dispose  by 
will  of  his  or  her  real  estate,  whether  such  estate  be  held  in  fee-simple,  or  for 

5.  Brightly's  Purdon's  Digest   (1700-1883),  Vol  II.  "Wills." 

831 


APPENDIX. 

the  life  or  lives  of  any  other  person  or  persons,  and  whether  in  severalty,  joint- 
tenancy,  or  common,  and  also  of  his  or  her  personal  estate. 

§  3.  Any  married  woman  may  dispose,  by  her  last  will  and  testament,  of 
her  separate  property,  real  personal,  or  mixed,  whether  the  same  accrue  to  her 
before  or  during  coverture:  Provided,  That  the  said  last  will  and  testament 
be  executed  in  the  presence  of  two  or  more  witnesses,  neither  of  whom  shall 
bo  her  husband. 

§  3.  And  provided  also,  That  no  will  shall  be  eflfectual,  unless  the  testator 
were,  at  the  time  of  making  the  same,  of  the  age  of  twenty-one  years  or  up- 
wards, at  which  age  the  testator  may  dispose  of  real  as  well  as  personal  or 
mixed  property,  if  in  other  respects  competent  to  make  a  will. 

[§  4  authorizes  the  appointment  of  testamentary  guardian  by  will.] 

[§  5  permits  the  bequest  of  emblements  and  rents  by  tenant  for  life.] 

§  6.  Every  will  shall  be  in  writing,  and  unless  the  person  making  the  same 
shall  be  prevented  by  the  extremity  of  his  last  sickness,  shall  be  signed  by 
him  at  the  end  thereof,  or  by  some  person  in  his  presence,  and  by  his  express 
direction;  and  in  all  cases,  shall  be  proved  by  the  oaths  or  affirmations  of 
two  or  more  competent  witnesses;  otherwise  such  will  shall  be  of  no  effect. 

§  7.  Every  last  will  and  testament  heretofore  made  or  hereafter  to  bs  made, 
excepting  such  as  may  have  been  finally  adjudicated  prior  to  the  passage  of 
this  act,  to  which  the  testator's  name  is  subscribed,  by  his  direction  and  au- 
thority, or  to  which  the  testator  hath  made  his  mark  or  cross,  shall  be  deemed 
and  taken  to  be  valid  in  all  respects:  Provided,  the  other  requisites,  under 
existing  laws,  are  complied  with. 

§  8.  Provided,  That  personal  estate  may  be  bequeathed  by  a  nuncupative 
will,  under  the  following  restrictions : 

I.  Such  will  shall  in  all  cases  be  made  during  the  last  sickness  of  the  testa- 
tor and  in  the  house  of  his  habitation  or  dwelling,  or  where  he  has  resided  for 
the  space  of  ten  days  or  more,  next  before  the  making  of  such  will;  except 
where  such  person  shall  be  surprised  by  sickness,  being  from  his  own  house, 
and  shall  die  before  returning  thereto. 

II.  Where  the  sum  or  value  bequeathed  shall  exceed  one  hundred  dollars,  it 
shall  be  proved  that  the  testator,  at  the  time  of  pronouncing  the  bequest,  did 
bid  the  persons  present,  or  some  of  them,  to  bear  witness  that  such  was  his 
will  or  to  that  effect;  and  in  all  cases,  the  foregoing  requisites  shall  be  proved 
by  two  or  more  witnesses,  who  were  present  at  the  making  of  such  will. 

§  9.  Provided,  That  notwithstanding  such  act,  any  mariner  being  at  sea, 
or  any  soldier  being  in  actual  military  sei-vice,  may  dispose  of  his  movables, 
wages,  and  personal  estate,  as  he  miglit  have  done  before  the  making  of  this 
act. 

[§§  10-15  relate  to  points  of  testamentary  construction.] 

§  16.  No  will  in  writing  concerning  any  real  estate  shall  be  repealed,  nor 
Bliall  any  devise  or  direction  therein  be  altered,  otherwise  than  by  some  other 
will  or  codicil  in  writing,  or  other  writing  declaring  the  same,  executed  and 
proved  in  the  same  manner  as  is  hereinbefore  provided,  or  by   burning,  can- 

832 


LEADING     WILLS    ACTS. 

celling,  or  obliterating  or  dostroying  the  same  by  the  testator  himself,  or  by 
some  one  in  his  presence,  and  by  his  express  direction. 

§  17.  No  will  in  writing  concerning  any  personal  estate  shall  be  repealed, 
nor  shall  any  bequest  or  direction  therein  be  altered,  otherwise  than  is  herein- 
before provided  in  the  case  of  real  estate,  except  by  a  nuncupative  will,  made 
under  the  circumstances  aforesaid,  and  also  committed  to  writing  in  the  life- 
time of  the  testator,  and  after  the  writing  thereof,  read  to  or  by  him,  and  al- 
lowed by  him,  and  proved  to  be  so  done  by  two  or  more  witnesses. 

[§§  18-20  concern  the  eflfect  of  subsequent  marriage  or  birth  of  children  as 
operating  to  revoke,  etc.] 

[§21  restrains  the  marriage  woman's  right  of  testamentary  disposition  so  far 
that  her  surviving  husband  may  elect  instead  to  take  under  the  intestate  laws. 
§  22  forbids  the  bequest  to  charity  within  one  month  of  the  donor's  decease. 
§§  23-26  relate  to  matters  of  construction,  the  execution  of  testamentary 
powers,  etc.] 


V.  VIRGINIA  WILLS  ACT.6 

[§  1  construes  the  word  "  will  "  as  applying  to  codicil,  testamentary  appoint- 
ment, etc.] 

§  2.  Every  person  not  prohibited  by  the  following  section  may,  by  will, 
dispose  of  any  estate  to  which  he  shall  be  entitled  at  his  death,  and  which,  if 
not  so  disposed  of,  would  devolve  upon  his  heirs,  personal  representative, 
or  next  of  kin.  The  power  hereby  given  shall  extend  to  any  estate,  right,  or 
interest  to  which  the  testator  may  be  entitled  at  his  death,  notwithstanding 
he  may  become  so  entitled  subsequently  to  the  execution  of  the  will. 

§  3.  No  person  of  unsound  mind,  or  under  the  age  of  twenty-one  years, 
shall  be  capable  of  making  a  will,  except  that  minors  eighteen  years  of  age  or 
upwards  may,  by  will,  dispose  of  personal  estate;  nor  shall  a  married  woman 
be  capable  of  making  a  will,  except  for  the  disposition  of  her  separate  estate, 
or  in  the  exercise  of  a  power  of  appointment. 

§  4.  No  will  shall  be  valid  unless  it  be  in  writing  and  signed  by  the  testator, 
or  by  some  other  person  in  his  presence  and  by  his  direction,  in  such  manner 
as  to  make  it  manifest  that  the  name  is  intended  as  a  signature;  and  more- 
over, unless  it  be  wholly  written  by  the  testator,  the  signature  shall  be  made 
or  the  will  asknowledged  by  him  in  the  presence  of  at  least  two  competent 
witnesses,  present  at  the  same  time;  and  such  witnesses  shall  subscribe  the 
will  in  the  presence  of  the  testator,  but  no  form  of  attestation  shall  be  neces- 
sary. 

§  5.  No  appointment  made  by  will,  in  exercise  of  any  power,  shall  be  valid 
unless  the  same  be  so  executed  that  it  would  be  valid  for  the  disposition  of 
the  property  to  which  the  power  applies,  if  it  belonged  to  the  testator;  and 
every  will  so  executed,  except  the  will  of  a  married  woman,  shall  be  a  valid 

6.  Code  of  Virginia   (1873),  c.  118. 

53  833 


APPENDIX. 

execution  of  a  power  of  appointment  by  will,  notwithstanding  the  instrunient 
creating  the  power  expressly  require  that  a  will  made  in  execution  of  such 
power  shall  be  executed  with  some  additional  or  other  form  of  execution  or 
solemnity. 

§  6.  Notwithstanding  the  two  next  preceding  sections,  a  soldier  being  in 
actual  military  service,  or  a  mariner  or  seaman  being  at  sea,  may  dispose  of 
his  personal  estate  as  he  might  heretofore  have  done;  and  the  will  of  a  person 
domiciled  out  of  this  state  at  the  time  of  his  death,  shall  be  valid  as  to  personal 
property  in  this  state,  if  executed  according  to  the  law  of  the  state  or  country 
in  which  he  was  so  domiciled. 

§  7.  Every  will  made  by  a  man  or  woman  shall  be  revoked  by  his  or  her 
marriage,  except  a  will  made  in  exercise  of  a  power  of  appointment,  when  the 
estate  thereby  appointed  would  not,  in  default  of  such  appointment,  pass  to 
his  or  her  heir,  personal  representative,  or  next  of  kin. 

§  8.  No  will  or  codicil,  or  any  part  thereof,  shall  be  revoked,  unless  under 
the  preceding  section,  or  by  a  subsequent  will  or  codicil,  or  by  some  writing 
declaring  an  intention  to  revoke  the  same,  and  executed  in  the  manner  in 
which  a  will  is  required  to  be  executed,  or  by  the  testator,  or  some  person  in 
his  presence  and  by  his  direction,  cutting,  tearing,  burning,  obliterating,  can- 
celling, or  destroying  the  same,  or  the  signature  thereto,  witli  the  intent  to 
revoke. 

§  9.  No  will  or  codicil,  or  any  part  thereof,  which  sliall  be  in  any  manner 
revoked,  shall,  after  being  revoked,  be  revived  otherwise  than  by  the  re-execu- 
tion thereof,  or  by  a  codicil  executed  in  manner  hereinbefore  required,  and 
then  only  to  the  extent  to  which  an  intention  to  revive  the  same  is  shown. 

§  10.  No  conveyance  or  other  act  subsequent  to  the  execution  of  a  will  shall,, 
unless  it  be  an  act  by  which  the  will  is  revoked  as  aforesaid,  prevent  its  oper- 
ation, with  respect  to  such  interest  in  the  estate  comprised  in  the  will,  as  the 
testator  may  have  power  to  dispose  of  by  will  at  the  time  of  his  death. 

[§§  11-16  establish  rules  of  testamentary  construction  in  certain  cases. 
§§   17,  18  provide  for  pretermitted  children.] 

§  19.  If  a  will  be  attested  by  a  person  to  whom,  or  to  whose  wife  or  husband, 
any  beneficial  interest  in  any  estate  is  thereby  devised  or  bequeathed,  if  the 
will  may  not  be  otherwise  proved,  such  person  shall  be  deemed  a  competent 
witness,  but  such  devise  or  bequest  shall  be  void,  except  that,  if  such  witness 
would  be  entitled  to  any  share  of  the  estate  of  the  testator,  in  case  the  will 
were  not  established,  so  much  of  his  share  shall  be  saved  to  him  as  shall  not 
exceed  the  value  of  what  is  so  devised  or  bequeathed. 

§  20.  If  a  will  charging  any  estate  with  debts  be  attested  by  a  creditor,  or 
the  wife  or  husband  of  a  creditor  whose  debt  is  so  charged,  such  creditor  shall 
notwithstanding  be  admitted  a  witness  for  or  against  the  will. 

§  21.  No  person  shall,  on  account  of  his  being  an  executor  of  a  will,  be 
incompetent  as  a  witness  for  or  against  the  will. 

[The  remaining  sections  of  this  chapter  relate  to  the  date  when  a  will  shall 
operate  and  to  probate  proceedings.] 

834 


FORMS    OF    WILLS. 

B.    FORMS  OF  WILLS. 

No.  1.     A  solemn  form  of  mil,  once  common,  ichere  a  m,arried  man  of  propertxf 
provided  for  his  family. 

In  the  name  of  God,  Amen.  I,  A  B,  of,  etc.,  being  in  good  bodily  health,^ 
and  of  sound  and  disposing  mind  and  memory,  calling  to  mind  the  frailty  and 
uncertainty  of  human  life,  and  being  desirous  of  settling  my  worldly  affairs, 
and  directing  how  the  estates  with  which  it  has  pleased  God  to  bless  me  shall 
be  disposed  of  after  my  decease,  wliile  I  have  strength  and  capacity  so  to  do, 
do  make  and  publish  this  my  last  will  and  testament,  hereby  revoking  and 
making-  null  and  void  all  other  last  wills  and  testaments  by  me  heretofore 
made.  And,  first,  I  commend  my  immortal  being  to  Him  wlio  gave  it,  and  my 
body  to  the  earth,  to  be  buried  with  little  expense  or  ostentation,  by  my 
executors   hereinafter  named. 

And  as  to  my  worldly  estate,  and  all  the  property,  real,  personal,  or  mixed, 
of  which  I  shall  die  seized  and  possessed,  or  to  which  I  shall  be  entitled  at  the 
time  of  my  decease,  I  devise,  bequeath,  and  dispose  thereof  in  the  manner  fol- 
lowing, to  wit:  — 

Imprimis.  My  will  is,  that  all  my  just  debts  and  funeral  charges  shall,  by 
my  executors  hereinafter  named,  be  paid  out  of  my  estate,  as  soon  after  my 
decease  as  shall  by  them  be  found  convenient.^ 

Item.  I  give,  devise,  and  bequeath  to  my  beloved  wife,  C  B,  all  my  household 
furniture,  and  my  library  in  my  mansion  or  dwelling-house,  my  pair  of  horses, 
coach,  and  chaise,  and  their  harnesses;  and  also  fifteen  thousand  dollars  in 
money,  to  be  paid  to  her  by  my  executors  hereinafter  named,  within  six 
months  after  my  decease;  to  have  and  to  hold  the  same  to  her,  and  her 
executors,  administrators,  and  assigns  forever.  I  also  give  to  her  the  use, 
improvement,  and  income  of  my  dwelling-house,  and  its  appurtenances,  sit- 
uated in ,  my  warehouse,  situated  in ,  and  my  wharf  situated  in , 

and  called  Wharf;  to  have  and  to  hold  the  same  to  her  for  and  during 

her  natural  life.  ' 

Item.  I  give  and  bequeath  to  my  honored  mother,  0  B,  two  thousand  dollars 
in  money,  to  be  paid  to  her  by  my  executors  hereinafter  named,  within  six 
'  months  after  my  decease;  to  be  for  the  sole  use  of  herself,  her  heirs,  executors, 
administrators,  and   assigns. 

Item.  I  give  and  bequeath  to  my  daughter,  D  B,  my  fifty  shares  of  the  stock 

of  the  president,  directors,  and  company  of  the  Bank,  which  are  of  the 

par  value  of  five  thousand  dollars,  my  fifty  shares  in  the  stock  of  the  

Insurance  Company,  which  are  of  the  par  value  of  five  thousand  dollars,  and 
my  ten  shares  of  the  stock  of  the  Manufacturing  Company,  which  are 

7.  If     the    testator     is     in     failing  posing  mind,  etc." 

health,  he  should  prefer  to  say  some-  8.  This     direction     is,     of     course, 

thing  like  this :  "  being  in  sufficiently  merely    formal,    but    many    testators 

good    health    and    of   sound    and   dis-  still  prefer  its  insertion  as  an  aid  to 

posing  mind,"  etc.;   or.  "  l>eing  in  de-  actual    intent,    or    with    some   special 

dining  health,  but  of  sound  and  dis-  application  indicated. 

835 


APPENDIX. 

of  the  par  value  of  ten  thousand  dollars;   to  have  and  to  hold  the  same,  to- 
gether with  all  the  profit  and  income  thereof,  to  her  the  said  D  B,  her  heirs, 
executors,  administrators,  and  assigns,  to  her  and  their  use  and  benefit  forever. 
Item.  I  give,  devise,  and  bequeath  to  my  son,  E  B,  the  reversion  or  remainder 

of  my  dwelling  or  mansion  house,  situated  in ,  and  its  appurtenances,  and 

all  profit,  income,  and  advantage  that  may  result  therefrom,  from  and  after 
the  decease  of  my  beloved  wife,  C  B;  to  have  and  to  hold  the  same  to  him  the 
said  E  B,  his  heirs  and  assigns,  from  and  after  the  decease  of  my  said  wife, 
to  his  and  their  use  and  behoof  forever. 

Item.  I  give,  devise,  and  bequeath  to  my  son,  F  B,  the  reversion  or  remainder 

of  my  warehouse,  situated  in  ,  and  its  appurtenances,  and  all  the  profit, 

income,  and  advantage  that  may  result  therefrom,  from  and  after  the  decease 
of  my  beloved  wife,  C  B;  to  have  and  to  hold  the  same  to  the  said  F  B,  his 
heirs  and  assigns,  from  and  after  the  decease  of  my  said  wife,  to  his  and  their 
use  and  behoof  forever. 

Item.  I  give,  devise,  and  bequeath  to  my  son,  G  B,  the  reversion  or  remainder 

of  my  wharf,  situated  in ,  called  Wharf,  and  its  appurtenances,  and 

all  the  profit,  income,  and  advantage  that  may  result  therefrom,  from  and 
after  the  decease  of  my  beloved  wife,  C  B;  to  have  and  to  hold  the  same  to 
the  said  G  B,  his  heirs  and  assigns,  from  and  after  the  decease  of  my  said 
wife,  to  his  and  their  use  and  behoof  forever. 

Item.  All  the  rest  and  residue  of  my  estate,  real,  personal,  or  mixed,  of 
which  I  shall  die  seized  and  possessed,  or  to  which  I  shall  be  entitled  at  the 
time  of  my  decease,  I  give,  devise,  and  bequeath,  to  be  equally  diveded  to  and 
among  my  said  sons,  E  B,  F  B,  and  G  B. 

Lastly.  I  do  nominate  and  appoint  my  said  sons,  E  B,  F  B,  and  G  B,  to  be 
the  executors  of  this  my  last  will  and  testament  [and  request  that  each  and 
all  of  them  may  be  exempt  from  giving  any  surety  or  sureties  upon  their 
official  bond  9]. 

In  testimony  whereof,  I,  the  said  A  B,  have  to  this  my  last  will  and  testa- 
ment, contained  on  three  sheets  of  paper,  and  to  every  sheet  thereof,  subscribed 
my  name,  and  to  this  the  last  sheet  thereof  I  have  here  subscribed  my  name 
and  affixed  my  seal,  this  first  day  of  May,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  fifteen.  A   B.    [l.   s.] 

Signed,  sealed,  published,  and  declared  by  the  said  A  B  as  and  for  his  last 
will  and  testament,  in  presence  of  us,  who,  at  his  request,  and  in  his  presence, 
and  in  the  presence  of  each  other,  have  subscribed  our  names  as  witnesses 
hereto.i  U  V. 

W  X. 
Y  Z.2 

9.  It    is   matter   of   prudf'nt   discre-  and   the   local  requirements   of   legis- 

tion  in  the  testator  to  omit  or  insert  lation.      See    supra,    §§    300-356.      In 

this  clause.  some  States  the  residence  of  witnesses 

1.  The  attestation  clause  may  vary  should   be  given,   and   this   is   always 

somewhat,   as  well  as  the  number  of  a  safe  precaution, 

witnesses,  according  to  circumstances  2.  It  should  be  borne  in  mind  that 

830 


FOEMS    OF    WILLS. 

No,  2.  Will  in  simplest  form,  giving  to  one  absolutely  all  the  testator's  real 

and  personal  estate. 

This  is  the  last  will  and  testament  of  me  [testator's  name  and  residence]. 
I  give,  devise,  and  bequeath  all  the  real  and  persona!  estate  of  every  descrip- 
tion, to  which  I  shall  be  entitled  at  the  time  of  my  decease,  unto  [devisee's 
name  and  residence],  absolutely  [;  but  as  to  estates  vested  in  me  upon  trust 
or  by  way  of  mortgage,  subject  to  the  trusts  and  equities  affecting  the  same 
respectively3].  And  I  appoint  the  said  [name]  sole  executor  of  this  my  last 
will,  hereby  revoking  all  other  testamentary  writings.  Witness  my  hand  and 
seal  this  15tli  day  of  January,  A.  D.  1915. 

Witnesses —  A  B.  [l.  s.]4 

U  V. 
W  X. 


No.  3.  Will  intended  for  the  appointment  of  executors  merely,  the  property  to 
go  as  in  case  of  the  maker's  intestacy. 

I,  A  B,  of,  etc.,  do  hereby  make  this  my  last  will  and  testament. 

I  appoint  my  son,  C  D,  and  my  son-in-law,  E  F,  to  be  executors  of  this  will, 
and  direct  that  tliey  shall  not  be  required  to  give  sureties  upon  tlieir  bond  as 
such. 

I  dispose  of  my  property  and  estate  in  tlie  same  manner  as  the  same  would 
descend  and  be  distributed  by  law,  if  this  will  had  not  been  made,  my  purpose 
being  only  to  appoint  executors  and  exempt  them  from  being  required  to  give 
sureties  upon  their  bond,  but  not  in  any  way  to  change  the  disposition  which 
the  law  would  otherwise  make  of  my  estate. 

In  testimony  whereof,  I,  the  said  A  B,  hereunto  set  my  hand  and  seal,  and 
publish  and  declare  this  to  be  my  last  will  and  testament  in  presence  of  tiie 
witnesses  named  below,  on  this  twentieth  day  of  January,  in  the  year  of  our 
Lord  one  thousand  nine  hundred  and  fifteen. 

A  B.  [seal.] 

Signed,  sealed,  published,  and  declared  by  the  above-named  A  B  as  and  for 
his  last  will  and  testament  in  presence  of  us,  who,  in  his  presence,  and  in  the 

by   the  modern   rule  of   England   and  will  is  more  strongly  fortified  for  its 

many      States      two      witnesses      are  probate. 

enough.      But   where    the    will    is    to  3.  This  clause  is  not  indispensable, 

operate  in  various  States  where  land  4.  Even   the   seal   may   be   omitted, 

lies,  it  may  often  be  safer  to  employ  Supra,    §    309.      And    the    customary 

three   witnesses;    a   course,   never   ob-  witness  clause,  though  very  desirable, 

noxious    to    local    law,    whereby    any  is  not  an  essential.     Supra,  §  346. 

837 


APPENDIX. 

presence  of  each  other,  and  at  his  request,  have  hereto  subscribed  our  names  as 
witnesses. 

U  V. 

W  X. 

Y  Z. 

Xo.  4.  A  simple  form  of  vjill,  which  makes  the  widow  one's  residuary  legatee. 

Know  all  men  by  these  presents,  that  I,  A  B,  of,  etc.,  do  make  and  declare 
this  to  be  my  last  will  and  testament,  hereby  revoking  any  and  all  wills  by 
me  at  any  time  heretofore  made. 

I  give  and  bequeath  to  each  of  my  children,  C  D,  E  F,  G  H  ajid  I  J,  the  sum 
of  five  thousand  dollars. 

I  give  and  bequeath  to  my  daughter  K  L  the  sum  of  ten  dollars. 

All  the  residue  of  my  estate  real  and  personal  of  which  I  shall  die  seized 
and  possessed,  or  to  which  I  shall  at  my  decease  in  any  way  be  entitled,  I  give, 
devise,  and  bequeath  to  my  beloved  wife  M  N,  to  have  and  to  hold  the  same 
to  her,  her  heirs  and  assigns  forever. 

I  nominate  and  appoint  my  said  wife  M  N  to  be  the  sole  executrix  of  my 
estate,  and  direct  that  she  be  exempted  from  giving  sureties  on  her  official  bond. 

In  witness  whereof  I  hereunto  set  my  hand  and  seal,  and  publish  and  declare 
this  to  be  my  last  will,  this  fourth  day  of  April,  in  the  year  of  our  Lord  one 
thousand  nine  hundred  and  fifteen. 

A  B.    [SEAL.] 

Signed,  sealed,  published,  and  declared  by  the  said  A  B  as  and  for  his  last 
will  and  testament,  in  the  presence  of  us  who,  in  his  presence,  and  at  hia 
request,  and  in  the  presence  of  each  other,  have  subscribed  our  names  as 
witnesses. 

U  V. 

W  X. 

Y  Z. 

No.  5.  A  will  which  places  the  residue  in  trust  for  the  benefit  of  an  unmarried 
niece  during  life,  and  to  go  at  her  death  to  her  child,  etc.,  if  she  has  any, 
otherwise  to  other  relatives  of  the  testator. 

Be  it  known  that  I,  A  B,  of,  etc.,  gentleman,  feeling  how  uncertain  life  is, 
and  wishing  to  dispose  of  my  property  in  a  manner  different  from  that  which 
applies  to  the  estate  of  persons  intestate,  do  now  make,  publish,  and  declare 
this  to  be  my  last  will  and  testament,  viz:  — 

First:  I  wish  all  my  just  debts  and  funeral  expenses  to  be  promptly  paid. 

Secondly:  I  give  and  bequeath  unto  my  brother-in-law,  C  D,  of  Worcester, 
two  thousand  dollars. 

Thirdly:  I  give  and  bequeath  unto  my  faithful  servant,  E.  F,  five  hundred 
dollars  as  a  token  of  ray  esteem  for  him. 

Fourthly:  I  give  and  bequeath  unto  the  Children's  Hospital  of  New  York 
city,  a  corporation  duly  incorporated  under  the  laws  of  the  State  of  New  York, 
the  sum  of  five  thousand  dollars. 

838 


FORMS    OF    WILLS. 

Fifthly:  I  give  and  bequeath  unto  G  H,  of  Baltimore,  Maryland,  in  case  she 
be  living  at  the  time  of  my  decease,  one  hundred  dollars,  as  an  acknowledg- 
ment of  her  kind  care  of  my  sister  during  lier  last  sickness. 

Sixthly:  I  give  and  bequeath  unto  my  cousin,  1  J,  of,  etc.,  my  gold  watcli, 
chain,  and  appurtenances,  with  my  best  wishes  for  the  future. 

Seventhly:  All  the  residue  and  remainder  of  my  estate,  wheresoever  and 
whatsoever  it  may  be,  at  the  time  of  my  decease  (including  any  lapsed  legacies) 
and  all  rights,  claims,  and  properties,  real,  personal,  or  mixed,  and  whether 
now  held  or  hereafter  obtained  by  me,  I  do  give,  devise,  and  bequeath  unto 
the  said  C  D,  his  heirs,  executors,  administrators,  successors,  and  assigns,  to 
have  and  to  hold  the  same  forever.  But  nevertheless  in  trust,  and  upon  tlie 
uses  and  trusts  and  for  the  purposes  following,  namely:  To  be  held,  managed, 
and  invested,  and  from  time  to  time,  as  need  be,  reinvested  by  the  said  C  D, 
trustee,  or  his  successor  in  said  trust,  for  the  benefit  and  advantage  of  my 
only  niece,  K  L,  daughter  of  the  said  C  D,  and  in  such  good  and  productive 
stocks  or  mortgages  as  will  produce,  if  possible,  a  sure  and  regular  income, 
the  whole  net  interest  or  income  of  which  fund  is  to  be  paid  over  to  the  said 
K  L  during  her  natural  life  (and  as  often  as  once  every  six  months,  if 
desired)  upon  her  own  order  or  receipt,  and  without  being  subject  in  any 
degree  to  the  order,  intervention,  or  control  of  any  husband  she  may  have, 
or  of  any  creditor  of  her  or  her  husband  aforesaid;  my  object  being  to  secure 
to  her  during  her  natural  life,  the  use  and  enjoyment  of  all  the  income  of  said 
property  (wliich  is  to  be  invested  productively)  beyond  the  control  of  her 
said  husband  or  of  any  such  creditor;  and  upon  the  decease  of  the  said  K  L, 
the  said  principal  trust  fund  and  all  earnings  or  accumulations  thereon  then 
remaining  unclaimed  by  her  in  the  hands  of  said  trustee  or  of  his  successor  in 
said  trust,  after  deducting  the  expenses  incident  to  the  trust,  is  to  be  paid 
over  and  distributed  to  tlie  issue  of  her  body  then  living,  if  any  (the  issue, 
if  any,  of  her  children  to  take  the  same  share  that  their  deceased  parent 
would  have  taken  if  so  living  by  right  of  representation),  for  their  use  and 
benefit  forever,  share  and  share  alike.  But  in  case  the  said  K  L  shall  die 
without  lawful  issue  or  direct  heirs  as  aforesaid  claiming  through  the  said 
K  L,  tlien  and  in  such  case  the  whole  of  said  principal  trust  fund  and  the  net 
earnings  remaining  shall  be  paid  over  and  belong  to  the  said  C  D,  if  then 
living,  or  in  case  of  liis  death,  to  his  lawful  heirs,  for  his  or  their  own  proper 
use  and  benefit  forever. 

Eighthly:  I  do  hereby  fully  autliorize  and  empower  the  trustee  above  named, 
or  any  successor  in  said  trust,  to  sell  and  dispose  of  any  property  real  or 
personal  that  I  may  have  at  the  time  of  my  decease,  and  to  make  good  and 
valid  instruments  of  transfer  thereof  or  any  part  thereof  or  any  rights  therein 
for  the  purposes  aforesaid  (and  no  purchaser  shall  be  bound  to  see  to  the 
application  of  the  purchase-money  or  consideration  paid  therefor)  and  also 
to  cliange  tlie  investments  from  time  to  time  and  as  often  as  the  said  trustee 
for  the  time  being  may  think  proper  for  the  end  and  purposes  above  mentioned. 
And  in  case  of  the  death,  refusal  or  inability  of  the  said  C  D  to  act  as 
said  trustee,  the  Judge  of  Probate  for  the  county  or  place  where  this  will 
may  be  proved  may  appoint  some  other  person  to  act  as  trustee  as  afore- 

839 


APPENDIX. 

said,  and  such  new  trustee,  so  to  be  appointed,  is  to  have  all  and  the  same 
powers  and  to  perform  the  same  duties  as  the  trustee  above  mentioned. 
My  desire  being  to  have  the  property  prudently  and  securely  managed  rather 
than  hazarded  in  what  may  promise  great  gains.  And  I  hereby  revoke  all 
other  wills  heretofore  made  by  me.     And 

Lastly:   I  appoint  tlie  said  C  D  executor  of  this  will. 

In  testimony  whereof,  I,  the  said  A  B,  have  hereunto  set  my  hand  and  seal 
this  ninth  day  of  February,  nineteen  hundred  and  fifteen. 

A  B.   [L.  s.] 
The  foregoing  was  signed,  sealed,  published,  and  declared  by  said  A  B  to  be 
his  last  will  and  testament  in  our  presence,  who  at  his  request  and  in  his 
presence  and  in  the  presence  of  eacli  other,  have  hereunto  set  our  hands  as 
witnesses  thereof,  the  day  and  year  last  above  written. 

U  V. 
W  X. 
Y  Z. 

No.  6.     Will  and  codicil  of  a  single  woman,  who  gives  the  hulk  of  her  estate 
to  personal  friends  and  in  charity. 

I,  A  B,  of,  etc.,  single  woman,  make  this  my  last  will  and  testament,  and 
revoke  all  former  wills. 

First:  I  appoint  C  D  of,  etc.,  executor  of  this  will,  and  exempt  him  from 
giving  any  bond  with  surety.  I  empower  my  executor  and  my  administrator 
with  the  will  annexed  to  sell  and  convey  any  land,  without  the  aid  of  any 
court,  by  public  or  private  sale,  at  discretion,  and  to  execute  such  deeds  as 
may  be  convenient  and  suitable.5 

Second:  I  give  to  each  of  the  persons  hereinafter  named  ten  thousand 
dollars,  to  wit:  E  F,  G  H,  I  J,  K  L,  M  N,  and  0  P,  six  legacies  making  sixty 
tliousand   dollars. 

Third:  I  give  to  each  of  the  persons  hereinafter  named  five  thousand  dollars, 
to  wit:  Q  R  and  S  T,  two  legacies  making  ten  thousand  dollars. 

Fourth:  I  give  to  the  Boston  Athenaeum  five  thousand  dollars. 

Fifth:  I  give  all  my  household  furniture,  wearing  apparel,  jewelry,  books, 
pictures  and  other  effects  at  my  lodgings  to  E  F. 

Sixth:  My  private  letters  and  papers  which  are  cliiefly  at  my  lodgings, — 
meaning  hereby  all  papers  not  relating  to  business, — I  direct  my  executor  to 
burn. 

Seventh:  All  the  residue  and  remainder  of  my  property  and  estate,  what- 
soever and  wheresoever,  I  give  and  devise  to  the  two  following  corporations,  in 
equal  shares:  namely,  the  Young  Women's  Christian  Association  of  Boston 
and  the  Boston  Provident  Association. 

5.  A  power  to  executors  ( or  to  their      these  days  for  the  convenient  settle- 
Burvivors    or    survivor)    to    sell    real      ment  of  an  estate. 
estate    is    often    highly    desirable    in 

840 


SUGGESTIONS    FOK    -MAKING    WILLS. 

Witness  my  hand  and  seal  to  this  my  will,  the  second  day  of  September,  in 
the  year  one  thousand  eight  hundred  and  eighty-three. 

A  B.     [seal.] 
Signed,  sealed,  published,  and  declared  by  the  above-named  A  B  as  and  for 
her  last  will  and  testament,  in  presence  of  us,  who,  in  her  presence,  and  at  her 
request,  and  in  presence  of  each  other,  have  hereto  set  our  hands  as  witnesses. 

U  V. 
W  X. 

Y  Z. 
No.  7.     Codicil  annexed  to  the  foregoing  will. 

I,  A  B,  make  this  codicil  to  my  last  will  and  testament  which  was  dated 
Sept.  2,  1883. 

First:  I  give  to  M  N,  in  addition  to  her  former  legacy,  five  thousand  dollars. 

Second:  I  cancel  and  revoke  tlie  legacy  of  five  thousand  dollars  given  to  S  T. 

Third:  I  give  to  G  H  the  portrait  of  my  grandmother,  painted  by  Hunt, 
whicli   is  at  my  lodgings. 

Fourth:  To  the  Trustees  of  the  Museum  of  Fine  Arts,  etc.,  I  give  the 
portrait  of  my  father  by  Morse. 

Fifth:  In  all  other  respects  I  confirm  my  will.  Witness  my  hand  and  seal 
this  twenty-second  day  of  August,  in  the  year  one  thousand  eight  hundred  and 
eighty-six. 

A  B.     [seat..] 

Signed,  sealed,  published,  and  declared  by  the  above-named  A  B  as  and  for 
a  codicil  to  her  last  will  and  testament,  in  presence  of  us,  who,  in  her  presence, 
and  at  her  request,  and  in  presence  of  each  other,  have  hereto  set  our  hands  as 
witnesses. 

U  V. 
W  X. 

Y  Z. 

C.      SUOGBSTIONiS    TO     PERSOJSFS    MAKING    THEIR 

WILLS. 

1.  Consider  at  the  outset,  whether  you  are  disqualified  by  the  law,  wholly 
or  partially,  from  making  a  will;  or  to  speak,  more  particularly,  whether  you 
are  a  minor,  a  married  woman,  or  an  alien.6 

2.  Consider  whether,  by  reason  of  old  age  or  other  infirmity,  there  is  any 
ground  for  the  imputation  that  your  mind  is  unsound;  and  if  so,  make  no 
will  unless  you  have  good  reason;  and  when  making  one,  fortify  carefully 
against  litigation,  both  in  your  scheme  of  disposition  and  the  proof  you  leave 
behind  of  your  mental  capacity  at  the  time  of  the  act  and  that  the  will  was 
properly  executed." 

3.  Similar  considerations  apply  where  you  are  of  intemperate  habits,  or 
lately  delirious  in  a  fever,  or  reputed  to  be  queer  or  crazy  on  some  subject.s 

6.  Supra,   §§   31-64.  8.  Supra,  §§  121-12S,  143-168. 

7.  Supra,   §§    165-213. 

841 


APPENDIX. 

4.  Consider  whether  your  situation  exposes  you  to  the  suspicion  of  being 
defrauded,  coerced,  or  subject  to  the  undue  influence  of  certain  persons;  as  if, 
for  instance,  you  should  be  blind,  illiterate,  or  confined  to  a  sick  room  and 
excluded  from  social  intercourse.  Here,  again,  be  very  careful  of  the  proof 
that  you  executed  intelligently  and  of  your  own  free  will,  and  be  sure  that  the 
instrument  is  altogether  genuine.  If  your  disposition  is  to  benefit  some  one 
whose  access  and  opportunity  of  influencing  you  is  much  greater  than  others 
having  equal  natural  claims  upon  your  bounty,  hedge  in  the  testamentary  act 
all  the  more  carefully  with  strong  and  ample  proof.9 

5.  A  will  entirely  in  your  own  handwriting  affords  the  best  proof  that  it  is 
genuine.  But  take  heed,  when  writing  out  your  own  will,  that  its  legal  ex- 
i:)ression  is  sufficiently  clear  and  exact,  else  a  contest  may  arise  over  its  mean- 
ing.   One  cannot  afford  to  be  too  secretive. 

6.  Laymen  often  err  in  supposing  they  can  draw  wills  with  more  breadth 
of  apprehension  and  accuracy  than  a  lawyer,  and  in  expressing  themselves  as 
though  persons  in  their  own  trade  were  to  profit  by  or  interpret  them.  The 
technical  words  of  the  law  are  better  understood  and  more  copiously  defined 
by  the  courts  than  those  of  any  mere  business  pursuit;  and  both  for  clearly 
comprehending  the  legal  effect  of  your  scheme  of  disposition  and  for  clearly 
expressing  what  you  comprehend,  you  should  take  professional  advice.  If 
you  purpose  an  unnatural  or  complicated  disposition  of  property,  involving 
a  considerable  estate,  it  would  be  very  unwise  to  make  the  will  without  con- 
sulting some  competent  third  person  and  submitting  to  him  your  plans  or  your 
draft.i  Lawyers  themselves  have  often  plunged  their  own  estates  into  doubtful 
disputes,  by  over-confidence  in  drawing  their  own  wills,  without  asking  for 
advice  and  criticism. 

7.  In  these  days  the  safest  will  is  that  which  deals  justly  by  the  natural 
objects  of  one's  bounty  and  distributes  in  a  simple  manner;  attempting  little 
beyond  limiting  property  so  as  to  give  the  income  to  some  person  for  life, 
with  capital  over  on  his  death,2  if  limiting  at  all.  If  your  estate  be  a  small 
one  and  the  beneficiaries  needy,  all  the  more  should  you  make  a  simple  will 
and  not  attempt  complex  dispositions. 

8.  Avoid,  if  possible,  precatory  words,  and  uncertainty  in  gifts,  and  be 
careful  as  to  creating  conditions,  limitations,  remainders,  etc.  Skilful  ex- 
pression and  technical  knowledge  may  here  prove  indispensable.3  Joint  and 
mutual  wills,  contingent  wills,  and  all  such  peculiar  kinds  give  rise  to  grave 
disputes.'! 

9.  Take  care  not  to  transgress  local  rules  against  perpetuities  and  in  re- 

9.  Supra,  §§  214-251,  tion  they  seek  to  avoid.     Mr.  Justice 
1.  Wills  drawn  up  without  legal  ad-  Story  in  BrowneU  v.  De  Wolf,  3  Ma- 
vice,    and    directing    that    no    lawyer  son,  486. 

should  be  employed  in  settling  the  es-  2.  See  Forms  of  Wills,  Nos.  1,  5. 

tate,  but  that  every  dispute  should  be  3.  See  supra,  Part  VI.  chaps.  2,  4. 

Hottlod    by    "throe    judicious,    lionest  4.  Hupra,  Part  V.;  also  §§  iL85-291. 
inon,"  are  likely  to  invite  the   litiga- 

842 


SUGGESTIONS    FOR    MAKING    WILLS. 

straint  of  accumulation,  nor  in  other  respects  to  make  provisions  subversive  of 
good  morals  and  sound  policy.5 

10.  Remember  that  in  various  aspects,  bearing  upon  the  construction  of 
wills  and  the  right  of  persons  to  take  under  such  dispositions,  each  State  has 
its  own  legislation. 

11.  In  the  description  of  the  property  devised  or  bequeathed,  and  of  the 
object  of  the  gift  (not  to  add  the  interest  given),  be  careful  and  accurate.^ 

12.  Be  explicit  and  clear  of  mind  as  concerns  the  time  when  interests  im- 
mediate or  expectant  shall  vest.  It  is  best  to  keep  in  view  that  your  will 
naturally  intends  to  take  effect  at  your  death  upon  your  property  as  it  then 
exists  and  the  objects  of  bounty,  or  their  relatives,  who  may  then  be  living. 
Prefer  that  interests  shall  vest  at  that  period  or  not  much  later,  and  tliat  the 
expression  of  your  will  correspond.^ 

13.  The  rule  of  taking  per  capita  or  per  stirpes  is  also  important.  Whether 
in  case  your  devisee  or  legatee  dies  before  you,  or  before  his  interest  vests,  you 
wish  his  children  or  other  representatives  to  take  his  share,  is  to  considered.^ 
The  whole  question  of  lapsing  by  death  is  an  important  one  in  such  gifts. 

14.  In  the  last  two  respects  and  in  general,  a  testator  who  limits  property 
should  consider  to  what  period  ownership  shall  be  referred,  and  how  far  and 
in  what  sense  persons  are  to  participate  as  survivors.  If  a  gift  is  made  to 
"  children,"  or  to  others  of  a  class,  it  is  important  to  know  whether  the  death 
of  one  shall  carry  his  share  to  the  others  of  that  class.9 

15.  There  are  some  technical  words,  such  as  "  heirs,"  "  heirs  of  body," 
"  issue,"  which  should  be  employed  with  discrimination,  and  the  more  so 
where  real  estate  is  disposed  of.i 

16.  It  is  useful,  and  in  some  cases  indispensable,  to  have  trustees,  to  preserve 
a  fund  whose  capital  is  not  to  be  at  once  distributed,  but  preceded  by  tem- 
porary and  successive  interests  in  the  property.  You  had  better  designate 
your  trust  and  trustee  plainly,  just  as  you  would  an  executor,  unless,  per- 
haps, being  married,  you  intend  to  dispose  in  favor  of  your  surviving  spouse 
and  children,  and  so  give  the  income  for  life  to  such  spouse,  with  reversion  to 
the  children;  or  possibly  in  some  other  case,  where  a  parent  will  be  prac- 
tically a  trustee  as  respects  his  or  her  own  oflFspring. 

17.  A  will  is  hardly  worth  making  if  you  intend  to  give  nothing  outside  your 
immediate  family,  and  as  among  these  to  fix  their  proportions  strictly  by  the 
statutes  of  descent  or  distribution.  But  a  will  may  be  useful  for  naming  an 
executor,2  or  you  may  wish  to  make  only  a  partial  disposition  or  to  execute  a 
power,3  or  to  empower  your  executor  to  sell  your  real  estate. 

18.  Observe  scrupulously  the  statute  requirements  when  executing  your  will, 
as  to  signature,  the  presence  of  witnesses,  the  method   of  their  attestation, 

5.  Supra,  §§  21.  22.  601-660.  2.  See  supra,  §  297.     As  to  consti- 

6.  See  Part  VI.  chap.  2.  tuting   a   testamentary'   guardian,   see 

7.  Supra,  §§  562-566.  §  294.     See  also  Forms  of  Wills,  No. 

8.  Supra,  §§  538-543.           ->  3. 

9.  Supra,  §§  529-537.  3.  Supra,  §§  298,  299. 
1.  Supra,  Part  "VI.  chap.  2. 

843 


APPENDIX. 

their  number,  their  competency,  and  the  like.  Be  sure  to  have  witnesses 
sutEcient  for  compliance  with  local  law  wherever  your  real  estate  may  be 
situated.  If,  from  any  cause,  your  free  and  intelligent  consent  to  the  instru- 
ment is  likely  to  be  challenged  after  your  death,  be  as  punctilious  and  circum- 
spect as  the  circumstances  permit.  Talk  with  the  witnesses  and  others,  and 
impress  upon  them  your  capable  condition.  Your  witnesses  should  be  dis- 
interested, clear-headed  persons,  whose  testimony  will  carry  favorable  weight 
in  support  of  the  will.  In  some  cases  it  will  be  prudent  to  have  the  instrument 
read  aloud  in  the  presence  of  others  before  you  sign.  Never  have  a  legatee  for 
a  witness;  select  no  witness  who  is  likely  to  stultify  himself  or  yield  to  bribes; 
and  if  there  is  danger  of  a  contest,  do  not  let  those  whom  disappointed  rela- 
tives will  charge  with  unfairly  influencing  your  disposition  be  too  prominent 
when  the  instrument  is  actually  executed.4 

19.  Permit  no  alteration  of  any  kind,  as  a  rule,  in  the  instrument  after  it 
has  been  once  executed;  but  if  a  change  be  needful,  re-execute  with  care,  or 
execute  a  new  instrument.  As  for  altering  or  revoking  your  will  more  gen- 
erally, consider  the  modes  permitted  by  law,  and  pursue  those  modes  strictly .5 

20.  Remember  that  marriage,  or  at  all  events  marriage  and  the  birth  of  a 
child,  revokes  a  will  already  made;  6  that  modern  statutes  infer  a  revocation 
pro  tanto,  to  let  in  a  child  born  later  than  the  will,  for  whom  no  provision  is 
made;  ^  that  a  child  to  be  disinherited  should  be  named;  and  that  a  surviving 
wife  (and  in  some  States  a  surviving  husband)  may  elect  against  the  will  of 
a  spouse,  to  take  as  the  local  statute  permits.^ 

21.  As  for  making  a  new  will  or  codicil,  you  should  be  guided  by  circum- 
stances. A  last  will  composed  of  one  instrument  with  several  later  amend- 
ments is  inconvenient  for  various  reasons.  If  your  health  and  situation  render 
it  doubtful  whether  the  latest  codicil  or  codicils  can  be  admitted  to  probate, 
keep  the  earlier  instrument  intact,  if  you  would  rather  have  that  take  effect 
than  die  intestate.  But  if  intestacy  is  your  preference,  or  if  you  are  undoubt- 
edly competent  and  free  to  make  your  present  will,  the  better  course  is  to 
destroy  utterly  whatever  instrument  or  instruments  precede,  and  make  a  new 
will  which  shall  embrace  the  whole  disposition  and  stand  as  sufficient  by 
itself.  The  best  and  simplest  revocation,  moreover,  is  to  burn  and  utterly 
destroy;  for,  to  keep  an  old  will  among  your  papers,  with  marks  of  cancelling 
not  sufficient  to  obliterate  what  was  written,  or  alterations  in  ink  or  pencil, 
is  to  run  the  risk  of  having  your  true  intention  misunderstood  or  perverted 
at  the  probate.9 

22.  Keep  your  will  in  such  custody  that  it  is  not  likely  to  be  lost,  destroyed, 
or  tampered  with,  but  rather  to  be  properly  presented  at  the  probate  court 
after  your  death.  In  some  States  provision  is  made  so  that  one  may  have 
his  will  kept  in  a  sealed  envelope  at  the  registry  of  probate,  subject  to  his 
own  order  while  he  lives,  and  not  to  be  opened  until  after  his  death.  The 
register's  receipt  is  given  for  such  envelope. 

4.  /S't/pra,  §§  .300-356.  7.  Supra,  §§  20,  480,  481. 

5.  ,S'7/pr«,  §§  3S0-427.  8.  Supra,  §  19. 

6.  Supra,  §§  424-426.  9.  See  passim,  §§  380-427. 

844 


INDEX. 


(References  are  to  Sections). 


Sec. 

ACKNOWLEDGMENT.    See  Execution 344 

AGE, 

as  aflfecting  testamentary  capacity 130-142 

ALIEN, 

cannot    take    gift 23 

whether  capable  of  making  will 34-36 

ALIENATION.     See  Condition    601,  602 

ALTERATION, 

of  estate,  whether  a  revocation 427 

alteration  defined :    partial  revocation 10,  428 

alteration  of  instrument 10,  429-433 

probate    with    interlineations,    etc 434 

presumptions  and  proof 435 

disposition  altered  by  codicil 438 

how  far  codicil  revokes 437,  438 

effect  of  revoking  will  or  codicil 439 

will  and  codicil  compared 440 

probate  of  codicil    440a-448a. 

ALTERNATIVE  WILLS    291 

AMBIGUITY.     See  Evidence 581 

APOPLEXY.     See  Insane  Persons 118 

ATTESTATION.     See  Execution 318-356 

ATTORNEY, 

power  of    423rt 

AUTOPSY 192 

B. 

BANKRUPTCY, 

conditions  against    606 

BEQUEST.     See  Construction;  Will 3,  513 

BLANKS  IN  A  WILL 298a,  584 

BLIND, 

wills  of  such  persons 94-99,  317,  343 

BURNING.    See  Revocation. 

C. 
CANCELLING     See  Revocation. 
CAPACITY, 

to  take  under  a  will 23-27 

See  Infants;  Insane  Persons;  Married  Women. 

845 


846  INDEX. 

CAPACITY — testamentary  capacity  in  general.  Sec- 

what  persons  may  make  a  will 31 

measure   of   capacity   defined 32 

whether    crime    disqualifies 33 

whether    aliens    are   capable 34-36 

whether    sovereign,   is    c-apable 37 

wills   of   seamen   and   soldiers 38 

incapacity    of    infants 39-4  4 

See  Infants. 

incapacity   of   married   women 45-40 

See  Married  Women. 

of   insane   persons 65  et  seq. 

See  Insane  Persons. 

of  deaf,  dumb,  and  blind  persons 94-99 

error,   fraud,    and   undue   influence 214 

eflfect  of  error  in  wills 215 

correction  of  errors  in  probate 216-219 

equity   jurisdiction  to   correct  mistakes 220 

fraud  or  force  vitiates   a  will 221,  222 

equity   and   probate  jurisdiction 223 

general  considerations  as  to  fraud  and  deceit 224- 

fraud,  undue  influence,  etc.,  vitiate  will 225-231 

relate   to   time   of   execution 232 

will  need  not  originate  with  testator,  etc 233 

effect  of   failure  of  will 234 

maxims  applied  to  parent,  child,  and  spouse 235-237 

fraud,  etc.,  must  have  operated;  natural  will,  etc 23S 

burden  of  proof  as  to  fraud,  undue  influence,  etc 239,  240 

points   of   evidence   considered 241-247 

probate  where   fraud  operates 248-251 

inspection   of   instrument   by  jury 251 

mistake  as  to  legal  effect  of  will,  etc 80a. 

CAPITA,    PER    538-541 

CERTAINTY, 

gift  whether  certain  or  uncertain 591 

uncertainty    in    subject   or   object 592-594 

precatory    trusts     595 

uncertainty    in    such   gifts 596 

general    conclusion    597 

CHARITY     21,  592a,  59S 

CHATTELS 508 

CHILDREN, 

unprovided   for    in   will 20,  425,  420 

See  CoNSTucnoN. 

described    in    gift 480,  529-534 

illegitinuitt'S,    adopted    children,    etc 481.  534 

in    estates    tail,    etc 555 

extrinsic   proof   of   gift 585 


INDEX.  847 

Sec. 
CLAIRVOYANCE 1C8 

CLASS, 

gift   to    529-532 

See  Construction. 

CODICIL, 

as  affected  by  insanity,  undue  influence,  etc 76,  250 

papers    probated   together,    etc 280-282 

effect  in  altering  a  will 7,8,  438-440 

probate  of    440a,  448a 

revocation  of  codicil,  etc 43i> 

comparison    with    will 440 

implied   republication    447,  448 

requires    formal    execution 350 

use  of,  to  revoke,  etc 404-410,  416,  417 

See  Revocation. 
in   construction    487 

COERCION.    See  Influence. 

COMMON, 

interest  in  devise  or  bequest 56G 

CONDITION, 

wills    upon    285-290 

precedent   or    subsequent 598-600 

restraints   upon    alienation,   etc 601,  602 

restraints    upon    marriage 603 

restraints  as  to  residence,  assuming  name,  maintaining  good  charac- 
ter,   etc 604 

against  disputing  the  will 605 

miscellaneous  conditions    604 

against   bankruptcy   or   insolvency 606 

limitation  and  condition  distinguished 607 

CONSIDERATION, 

wills   revocable  by   way   of   gift 451 

wills  upon   consideration   irrevocable 231o,  452 

will  probated,  notwithstanding  breach 452a 

rule  of  consideration  applied  to  legacy;other  instances 453,  453a 

contract  for  a  certain  will  enforced 454 

joint  or  mutual  wills 62,  455  457 

distinctions  and   incidents   of   such  wills 231a,  458-460 

CONSTRUCTION, 

general  rules  laid  down. 

precedents  of  interpretation;   deeds  and  wills 26,  27,  461 

scope  of  rules  of  testamentary  construction 462-464 

aided  or  unaided  by  extrinsic  evidence 465 

cardinal  rule  that  intent  shall  prevail 466,  467 

whole   will    taken   together 468,  473 

language   according   to   testator's   situation 469 

technical   and   familiar  words,   etc 470-472 

later  clause  construed  with  earlier 474 


848  INDEX. 

CONSTRUCTION— co«/;n  wed.  Sec. 

words  in   same  clause 474a 

general   description   limited  by   particulars 475 

predominant  idea  of  will 476 

language,  how  far  changed  or  moulded;  punctuation,  etc 472.  477 

treatment  of  repugnant  parts 478 

favor  to  heir,  next  of  kin,  children,  etc 479-482 

devise  without  limitation;    its   effect 483-48.5 

when  a  will  takes  effect;   after  acquired  property 486 

codicil   construed   with   will 487 

some  effect  given  to  will 488 

whether  controlled  by  condition  of  estate 488a 

presumption  of  compliance  with  law,  etc 489 

presumption  against  partial  intestacy 490 

local   law  of   interpretation 49 1 

summary ;    Jarman's    rules 492 

details  of  testamentary  construction. 

details   relating  to  property   considered 493 

as  to  real  estate  and  leaseholds 494 

trust   estates,    and   mortgages 495 

reversionary   interests    496 

lands   contracted   for    497 

"  land,"    "  tenement,"    "  hereditament  " 498 

"  messuage,"   '•  premises  "    499 

"  house,"    "mill,"    etc 500 

"*  lappurtenances,"    etc 501 

devise  of  a  "  farm,"  "  freehold,"  etc 502 

"  rents  and  profits  " ;   "  use  and  occupation  " 503 

as  to  personal  property;  "  mortgages,"  "  securities  " 504 

"  money  "  or  "  moneys,"   "  cash,"   etc 505 

"  movables  " ;   "  gift  of  interest  or  produce  " 506,  507 

"  goods  ";   "  chattels  " 508 

"  effects  " ;    "  possessions  " ;    "  things  "    509 

"estate";   "property" 510 

miscellaneous  terms   511,  512 

description  of  gift;    devise,  bequest,   etc SIS' 

general   terms    restrained   by    particulars 514,  515 

false  description  does  not  vitiate 516 

but   particulars  may  qualify 517 

repugnant  description   518 

real   estate  with  the  personalty  thereon 518a 

residuary   bequest;    its   effect 519,  520 

residuary   devise;    its   effect 521,  522 

gift   of    residue   in   general 522-524 

•  execution   of   power 525,  526 

errors  of  description   corrected 527 

obji'ot  of  gift  to  be  considered 523 


INDEX.  849 

CONSTRVCTIOy^-^ontinued.  Sec 

gift  to  children,  etc.,  as  a  class 529-532a 

"  children,"    "  grandchildren  " 533,  534 

"  issue,"    "  descendants,"    etc 535 

collateral    relatives 530 

surviving    spouse     535ffl 

"  relations,"  "  family,"  etc.  .  . .      . .    , 537 

"  beneficiaries  "        ... 537a 

taiving  per  capita   or  per  stirpes .538-541 

"  heirs  "  or  "  next  of  kin  "   in  bequests 542,  543,  548 

"representatives,"    "executors,"    etc 544 

heir,  in  real  estate,  etc 545-548 

devise  of  lands,  etc,  in  fee 549 

"  estate,"    "  property,"    "  residue,"    "  remainder  " 5.50 

heirs;  estates  tail;  Shelley's  Case,  etc 551-5.53 

limitation   and   purchase 5.53a 

rule  as  to  "  issue,"  "  children,"  etc ... .    555 

estates  tail  not  favored 556 

bequests,  absolute  or  for  life 557,  558 

devise  or  bequest,  absolute  or  not 550 

life  estate  and  remainder 560 

executory   devise    560 

devise  or  bequest  by  implication 561 

gift  whether  vested  or  contingent 562 

vested    estates    defeasible 562a 

beneficiaries,   when   ascertained 563 

"  dying  without  issue,"  etc 564 

substitution,    survivorship,    etc 565 

interest,  whether  joint  or  common 566 

interest  of  husband  and  wife 566 

gifts  to  servants,  strangers,  etc 566a 

extrinsic   evidence    to   aid 567-568 

See  Evidence. 

CONTINGENT, 

wills    285-290 

See  Condition. 

CONTRACT    67,  270,  452-454 

CORPORATION, 

whether   capable   of   taking  gift 24 

COSTS    213a,  492a 

COVERTURE.    See  IVIareied  Women. 

CRIME, 

disqualification  considered 23,     33 

D. 
DEAF  AND  DUMB, 

wills  of  such  persons 94-99 


850  INDEX. 

Sec. 

DECLARATIONS.  See  Evidence   18,  193-195,  243,  244,  317a,  403 

DEED, 

compared   with   will    270,  461 

DELIRIUM, 

delirium  of  diseases,  etc 114,  121-123 

delirium    tremens     124-128 

dementia    distinguished     129 

See  Insane  Pebsons 

DELUSIONS.      See   Insane   Persons 143-168 

DEMENTIA.     See  Insane  Persons 129-142 

DESCENDANTS.      See    Construction 480,  535 

DESCRIPTION    494  et  seq. 

See  Construction. 
DESTRUCTION.     See  Re\ocation. 

DEVISE.     See  Construction  ;   Will 3,  15,  513 

executory     560 

DISPUTE, 

of    will    605 

See  Condition. 

DIVORCE     426a 

DRUNKENNESS.     See  Insane  Persons 124 

DUPLICATE    WILLS    399,  411 

E. 

ECCENTRICITY.     See  Insane  Persons 144-153 

EFFECTS      509 

EPILEPSY 118 

EQUITY.    See  Construction. 

jurisdiction  to  correct  mistakes 220 

questions   of  fraud   and   force 223 

as  to  joint  or  mutual  wills 456-460 

procedure    in    construction 492a 

ERROR, 

in    wills    80a.,    162,   163,  214-220 

See  Capacity. 
in   describing   property    527,  550^ 

ESTATE.     See  Construction 510,  549  et  seq. 

EVIDENCE, 

in  wills  of  the   insane,  etc 95,  99,  110-120,   127 

See  Insane  Persons. 

to  prove  capacity  and  incapacity 169-213 

See  Capacttt. 

burden  of  proof  of  fraud,  undue  influence,  etc 239-241 

character  of  evidence  in  such   issues 242-247 

extrinsic,  not  to  dispute  plain  tenor 277 

of   instruments   incorporated   as  a   will 282 

in   conditional   or   contingent   wills 290,  292 


INDEX.  851 

EVIDENCE— con/inued.  Sec. 

to  prove  execution    299a. 

of  subscribing   witnesses 348 

of  nuncupative  will    377 

in  case  of  lost  or  defaced,  etc.,  will 401-403,  412 

to  show  revocation    423 

where   will    is   altered 435 

extrinsic,  to  aid  in  construction 465 

presumptions    in    construction 462,  463 

See   CONSTBUCTION. 
extrinsic  to  aid  construction. 

general   rule   stated    567 

not   to   control,    contradict,    etc 568,  569 

not  to  change  rules  of  construction 570 

meaning  of  words;   punctuation,  etc 571 

extrinsic  to   resolve   a  doubt 572 

to  aid  equivocal  description 573-575 

conclusion  as  to  proof  of  intent 576 

reference    to    context 577 

extrinsic  proof   not  to   aid   to  misconstrue 57H 

extrinsic  proof  of  fa«ts  and  circumstances 579,  580 

latent  and  patent      ambiguities 581 

proof   of   custom;    deciphering,   translating 582 

misnomer;   nickname;    identity   proved 583 

blank  in  will ;    no  insertion 584 

devise  or  bequest  to  children,   etc 585 

proof  of   resulting  trust,  etc 586 

language  not  to  be  varied 587 

general  summary  as  to  extrinsic  evidence ; 588,  589 

Sir  James   Wigram's   propositions 590 

EXECUTION, 

signature   and   attestation 213a,    255o,   256,   257 

whether   instrument  is   testamentary 267-269 

what  execution   signifies    302 

signature  hy  the  testator. 

statute  requirement   as   to  signing 300,  301 

testator  signs  or  makes  mark 303-305 

testator  signs,  or  another  for  liim 306,  307 

name  affixed  by  subscribing  witness 308 

seals  usually  dispensed  with 309 

misnomer    or    discrepancy 310 

position   of   signature 311,  312 

signing  must  have  been  intended 313 

signature   for   several    sheets 314 

where  will  is  written  by  portions 315 

upon   paper  fastened  to  the  will 316 

contents  noade  known  to  blind  or  illiterate 317 


852  INDEX. 

EVIDENCE — continued.  Sec. 

testator's   understanding   an   issue 317(X 

al testation,  etc.,  by  witnesses. 

attestation   or   subscription  in  general 318 

under   modern   statutes 319 

number  of  witnesses   required 320 

signing   or   acknowledging  before  witnesses 321-325 

publication  or   declaration  of  will 326 

simultaneous  presence  of  witnesses 327 

subscription   by   testator   after   witnesses 32*^ 

request  to  witnesses  to  sign 329 

attestation   and   subscription   distinguished 330 

what  is  signing  or  subscription 331-334 

position  of  signature,   etc 335-337 

"  signing  "    and    "  subscribing  "    equivalent 33S 

whether  another  may  sign 339 

subscribing  '*  in  the  presence  of,"   etc.  ., 340-343 

certificate  of  acknowledgment;   magistrate,  etc.;   other  formalities...   344 

re-execution   when   necessary    345 

use   of    attestation    clause 346,  347 

subscribing  witnesses  relied  upon,  etc 348 

attestation    to    sanity,    etc 349 

competency   of   witnesses 350-358 

execution  of  oral  wills  compared 359   et  seq. 

See  Nuncupative  Will. 

re-execution    of    will 442,  443 

See  Republication. 

EXECUTOR     50,  297.  354,  544,  583,  611 

EXPERT,   MEDICAL,   ETC 197-213 

F. 

FAMILY     537 

"  FAKE  "    WILL 250,  278,  279 

FORCE.    See  Influence. 

FORGERY 241 

FRAUD.     See  Influence. 

G. 

GIFT.      See    Will 3 

causa  mortis,  and  will  distinguislied 63,  271 

GOODS    508 

GUARDIAN, 

testamentary,  whetlior  appointed  by  will 44,  294,  295 

of   insane    81,     82 

H. 
1 1  Kill, 

formerly  favored 479-485 

in    bequests    543 


INDEX.  853 

HEIR — continued.  Sec. 

in    realty,   etc 545-548 

words  of  limitation  or  purchase 551-554 

See  CoNSTRUcnoN. 

HOLOGRAPH, 

will    9,   255 

HUSBAND.     See  Mabriage. 

I. 

ILLEGALITY, 

in    wills    21-24 

ILLITERATE  PERSONS, 

wills   of    317 

IMBECILES.     See  Insane  Persons. 

INFANTS, 

may  take  under  will .25 

reason  of  incapacity  to  make  will 39 

earlier   and  later   rules   compared 40-42 

modern   legislation    does   not   favor 4.T 

appointment   of   testamentary  guardian 44 

INFLUENCE, 

undue,  in  wills  considered 89,  221  et  seq. 

fraud,  force,  or  undue  influence 221-226 

undue   influence  defined;    how  exerted 227-233 

effect  upon   will 234.  238 

maxims    applied    , 230-238 

evidence  in  such  cases 239-247 

probate  of  wills  unduly  influenced 248-251 

subsequent  and   parol   assent   insufficient 2516 

in   issues  of  revocation 427a 

INSANE  PERSONS, 

may  take  under  will 25 

their  incapacity  to  make  a  will ;  in  general. 

will  void;   modern  tests  difficult 65,     66 

standard  of  capacity  in  contracts  compared 67 

general  standard  stated   68,     69 

incapacity  more  than  weak  capacity 70,     71 

test  referred  to  the  particular  instrument 72 

will  in  extremis    proper 73 

capacity   consistent   with    insane   delusions 74.     75 

eflfect  as  between  will  and  codicils 76 

rational   and   irrational  wills 77,     78 

manner  of  executing  the  will ■. 79 

complex  and  simple  estates  contrasted 80 

will  of  one  under  guardianship 81,     82 

sound  and  disposing  mind  and  memory,  heatlli,  etc 83.     84 

classifications    of    insanity,    etc 85-87 

courts   apply   practical   tests 88 


854  INDEX. 

INSANE    PERSONS— confinwed.  Sec. 

tests  of  mental  capacity 88,     89 

each  case  tested  by  its  own  facts 89o 

incapacity  of  idiots,  imbeciles,  the  deaf,  dumb,  and  blind,  etc. 

what  is   idiocy;    idiots   and   imbeciles   incapable 90-93 

persons  born  deaf,  dumb,  and  blind 94,     95 

persons  not  so  born,  but  disabled 96-99 

general  conclusion  as  to  the  blind,  etc 99 

lunacy,  and  general  mental  derangcm^ent. 

mental  unsoundness  in  medium  degree 100,  101 

illusions,  perversions,  false  judgment 102 

expert  attempts,  etc.,  to  classify  insanity 103 

common  symptoms  of   insanity 104 

will   of  lunatic,  etc.,   invalid 10.5 

restoration,   and   intermittent   insanity 106 

lucid   intervals    107-109 

proof  of  will  made  during  lucid  interval 109-115 

doubtful  derangement,   paralysis,   prostration,  apoplexy,  hysteria, 

etc 116-118 

mental  condition  nearly  contemporaneous  with  will 119 

suicide  not  conclusive  of   insanity 120 

murder    by   testator 120 

delirium,  drunkenness,  and  dementia. 

delirium  of   disease   incapacitates 121-12S 

delirium  tremens,  drunkenness,  opium  habit,  etc 124-128 

dementia   distinguished  from  mania,   etc 129 

senile  dementia,  or  decay  of  the  aged 130-134 

wills  of  the  aged,  how  regarded 135-142 

monomania,  and  insane  delusions. 

monomania,  or   partial   insanity 143 

eccentricity  and  insane  delusions  distinguished 144,  145 

delusions,  sane  or   insane,   in  general 147 

whimsical    or    eccentric    behavior 149-152 

monomania  or   insane   delusion   affects   capacity 153-156 

English   cases   considered 157,  158 

American   cases   considered 159-161 

sudden   manife.stations,   etc 161a 

insane  delusion  distinguislicd  from  prejudice  or  error 162-164 

rational  or  irrational,  just  or  unjust  will 165 

delusions  in  religion,  etc 166,  167 

belief  in  witchcraft,  spiritualism,  clairvoyance,  etc 168 

proof  of  capacity  and  incapacity. 

uncontested  cases;  contested  cases;  burden  of  proof 169-174 

.subscribing  witnesses;    their  testimony 175-180 

to    test    capacity 181,   182 

statement  of  sanity   in   attestation   clause 183 

proponent  opens  and  closes  case 184 


INDEX.  855 

INSANE    PERSONS— o-onhnwed.  Sec. 

issue  of  testamentary  capacity;  matters  of  proof 186-102 

testator's  declarations,  etc 193 

miscellaneous  points  as  to  evidence 194-11)6 

character    of    witnesses    who    testify 196 

opinion  of  witness  as  to  sanity 197,  198 

opinions    of   non-experts 197,  199-203 

expert  opinions  and  testimony 204-213 

in  issues  of  revocation 427a 

INSOLVENCY, 

condition   against    606 

INTENTION.     See  Construction. 

INTESTACY,  PARTIAL,  etc 298,  490 

ISSUE    535,  554,  564 

J. 
JOINT, 

interest  in  devise  or  bequest 29a,  566 

JOINT  WILL.     See  Consideration 480 

K. 
KIN, 

next  of   542,  543 

KINDRED.     See  Construction 480 

L. 

LAND     497,  498 

LEASEHOLDS    494 

LEGACY.     See  Construction  ;    Will 5 

LIFE   ESTATE    560 

LIMITATION, 

and  condition   distinguished 283,  607 

and   purchase  distinguished 553a 

LOST    WILL    402 

LUCID  INTERVAL.    See  Insane  Persons. 
LUNATIC.     See  Insane  Persons. 

M. 

MANIA.     See   Insane   Persons 121-128 

]\L4RINERS.     See  Nuncupative  Will. 

MARRIAGE, 

rights  of  surviving  spouse 11,  19,  79,  4Sla,  535a,  595 

mutual  will  of  husband  and  wife 62 

marital  influence  in  procuring  a  will 236,  237 

husband  or  wife  as  subscribing  witness 355 

subsequent,   etc.,   revokes   will 19,  20,  46.  424-426 

effect  of   divorce 426a. 

husband  and  wife  under  a  gift 566 

restraints   upon   marriage 22,  603 


856  INDEX. 

Sec, 
MARRIED  WOMEN, 

effect  of   subsequent   statute 11 

may  take  under  will 25 

incapacity  to  make  will  at  common  law 45 

marriage   a    revocation 46,  424 

modern  changes  as  to  wife's  incapacity 47 

exceptions;    bequeatliing   by   husband's   assent 48,     49 

wife's  disposition   as   executrix 50 

wife's  will  of  separate  property 51-54 

modern  English  statutes  of  wills 55 

wife's  will  under  late  American  statutes 56,     57 

civil  law  rule;  present  tendency  to  conjugal  equality 58 

devise  or  bequest  to   husband 60 

devise  or  bequest  to  wife 585 

his  agreement  to  wife's  will 61 

mutual  wills  of  husband  and  wife 62,  455-457 

wife's  gift  causa  mortis 63 

wife's  execution  of  testamentary  power 64 

MEDICAL  OPINION 204-213 

^nSNOMER    583 

MISTAKES.     See  Ebbob. 

MISTRESS     22,  236,  237 

MONEY   505 

MONOMANIA.     See  Insane  Pebsons 75,  76,  143-168 

MORTGAGE 495,  504 

MURDER, 

of    testator   by   beneficiary 23 

by   testator 33,  120 

MUTUAL  WILLS.     See  Considebation. 
MYSTIC, 

will     9 

N. 

NAME, 

condition   of    assuming    < 604 

NEPHEW     536 

NICKNAME     583 

NUNCUPATIVE  WILL, 

wills  which  require  no  formal  writing,  etc 6,  38,  359 

oral    or    nuncupative   will    defined 360 

history  prior  to  Statute  of  Frauds 361 

elTectcd  personal  but  not  real  estate 362 

restraints  under  Statute  of  Frauds 303 

now  virtually  abolished,  with  few  exceptions 304,  365 

Boldiers,   mariners,  etc.,  privileged 366-368 

points  to  be  considered;   distinctions 369 

whether   made   in   coctrcmis 370,  371 


INDEX.  867 

KUNCUPATIVE    Wll.h— continued.  S"  C. 

place    of   making   will 372 

manner  of  declaring 373,  374 

requisite    number    of    witnesses 375 

subsequent   reduction   to    writing 370 

strictness  of  proof  of   material   facts 377 

informal   writings,   whether   upheld 378 

whether  written  will  thus  revoked,  etc 379 

0. 
OBLITERATION.     See  Revocation. 

P. 

PARALYSIS.     See  Insane  Persons IIG-IIS 

PARENT, 

influence  of  in  procuring  a  will 235 

PARTNERS     29o 

PERPETUITIES    21 

POWER    64,    299,    525,  526 

PRECATORY, 

words,    effect   of 263,    595-597 

PREJUDICE     162,  163 

PRESENCE, 

at  execution  of  will 340-343 

See  Execution. 

PRESUMPTION.     See  Construction;   Evidence. 

PROBATE, 

as  to  insanity,  due  execution,  etc.;  costs 213a 

full  or  partial  in  case  of  error 216.  219 

undue    influence,   etc 223,  248-251 

several  papers  making  a  will 280 

of   altered   will 434,  435 

of   codicil    440(1,  448'i 

or  joint  or   mutual   will 456-460 

court    in   construction    492a 

PROOF.     See  Evidence,  Probate. 

PROPERTY, 

real,   personal,    and   mixed 4,     28,     29 

See  Will. 

acquired   after   making  the  will 29,  4-19,  486 

rea.1,   descriptions    construed 494-504 

personal,   descriptions   contrued 504-512,  550,  557-580 

See  Construction. 

PROSTRAnON     116 

PUNCTUATION      472,  477,  571 

PURCHASE    553a 


858  INDEX. 

Seo. 
R. 

RELATION'S    537 

REJMAINDER     550,  500 

REPRESENTATIVE     538-541,  545 

REPUBLICATION, 

of  will   after  coverture 5!) 

definition;   acts  express  and  implied. . 441 

express  republication  or  re-execution 442,  443 

implied  republication ;   oral  or  written 444-447 

effect  of   republication    448-450 

REPUGNANCY, 

in  wills    478 

See  Construction. 
in   description    518 

REQUEST.     See  Pbecatoey. 

REQUISITES.     See  Wills. 

RESIDENCE.     See   Condition 604 

RESIDUE.     See   Construction 521,  525,  550 

REVOCATION, 

revoking    instruments     296 

wliether  nuncupative  will   revokes 379 

various  modes   of   revocation 10,  380,  381 

oral  or  implied  not  recognized 382 

by   burning,   tearing,   cancelling,   etc 383,  384 

sane  intention  to  revoke  must  accompany 384 

as  to  will  destroyed  unintentionally 385 

where  intention  fails  of  action ; 386 

burning,  etc.,  by  testator  himself,  etc 387 

no  witnesses  to  act  necessary 388 

burning,   tearing,   cancelling,   etc 389-394 

incomplete  burning,  cancelling,  etc 395,  396 

revocation  of  part  only,  etc 397,  398 

of  duplicate  wills;  of  will,  but  not  codicil 399,  400 

presumptions;  will  lost  or  defaced 401,  402 

testator's    declarations     403 

by   subsequent   will   or   codicil 404-410 

two  wills   of   same   date 411 

where  revoking  will  cannot  be  found 412 

revival  of  earlier  will 413-415 

reference  of  codicil  to  one  of  two  wills 416 

express  revocation  by  later  will,  etc 417,  418 

by  other  writing   419-422 

parol   evidence   of   intention 423 

instrument  intendc<l  to  confirm;   power  of  attorney,  etc 423a. 

inference  of   law;    subsequent  marriage,   etc 46,  424-426 

eiTect  of   divorce    426* 


INDEX.  859 

"BEVOCATLON— continued.  Sec. 

implied  by  alteration  of  estate 427 

efi'ect  of  contemporaneous   mortgage 4276 

See  Alteration. 

by   codicil,    etc 437-439 

by  joint  or  mutual  will 458a 

presumption   against    489a 

S. 
SAILORS.     See  Nuncupative  Will. 

SEAX.     See  Execution    , 309 

SEAMEN.     See  Nuncupative  Will 38 

SECURITIES     504 

SENILE  DEMENTIA.     See  Dementia 129-142 

SERVANT    568a 

SIGNATURE.     See  Execution 256,  300  et  seq. 

SOLDIERS.     See  Nuncupative  Will 38 

SOVEREIGN, 

will    of    37 

SPENDTHRIFT  TRUSTS 606 

SPIRITUALISM.     See  Insane  Persons 168 

STATUTE, 

«ffect  of  subsequent  upon  will 11 

leading   wills   acts 14-16 

Thellusson  act 21 

as  to  execution,  writing,  etc 252-257 

as   to   signing 300,  301 

as  to  attestation    319,  320 

as  to  gifts  to  attesting  witnesses 357 

as  to  nuncupative  wills 363-365 

as  to  revocation  of  wills 380,  381,  422 

in  rules  of  construction 485 

See  Construction. 

STIRPES,  PER   538-541 

STRANGER 566a 

STUPOR.     See  Dementla    140 

SUBSCRIPTION.     See  Execution. 

SUBSTITUTION     565 

SUCCESSION    12,   13,   17 

SUICIDE.     See  Insane  Persons 120 

SUPERSTITIOUS    USES    21,21a 

SURVIVORSHIP 529-532,  565 

T. 

TAIL,    ESTATES    553-556 

TESTAMENT.     See  Will .2  et  seq. 

TRANSLATION 582 


860  I^-DEX. 

Sec. 

TRUST.     See  Teustee 495 

resulting,  proof  of    o8G 

precatory,  uncertain,   etc 595-597 

when  invalid  or  liable  to  set  aside 610 

TRUSTEE, 

testamentary   rights   and   duties 495,  G08,  611 

good,  faith  and  diligence  required   611 

U. 
UNCERTAINTY.     See  Certaixt\-. 

UNJUST  OR  UNNATURAL  WILLS 77,  112,  165,  227,  482 

W. 

WIDOW.  See  Mabbiage. 

WIFE.    See  Mabbiage,  Mabbied  Women. 

WILL, 

its  nature  and  origin. 

definition 1 

last  will  and  testament ;  testament  and  testator 2 

gift ;   devise ;   bequest    3 

property  given ;   real,  personal,  and  mixed 4 

legacy   defined    5 

written  and  unwritten  or  nuncupative fi 

codicils  or  postscripts  to  will 7 

will    includes    codicil 8 

testaments  in  the  civil  law;  special  kinds;  mystic,  holograph,  etc.  ...  9 

when  will  comes  into  force,  ambuhitorj'  character 10 

effect  of  subsequent  statute 11 

origin  of  will ;    succession,  etc 12,  13 

origin  in  England;   devises,  etc 14,  15 

origin  in  the  United  States 16 

natural  right  to  devise,  etc l&a 

prevalent   rule   of   succession 17 

will  of  State  and  will  of  individual 17,  18 

will  of  State  when  paramount 18 

case  of  husband  and  wife 19 

of  children  unprovided  for 20 

petpetuities,  superstitious  uses,  etc 21 

gifts,   illegal,   immoral,  etc 22 

personal   incapacity  to  take  under  will 23 

incapacity  of   corporations   to   take 24 

infants,  insane,  married  women,  etc.,  may  take 25 

maxims  of  testamentary  construction 26 

general  conclu.sion  as  to  policy  of  succession 27 

what  may  Ix;  given  by  will 28,  29,  486 


INDEX.  861 

WILL — continued.  Sec 

scope  of  investigation  to  be  pursued 30 

capacity  and  incapacity  to  make  a  loill 31  et  seq. 

See  Capacity. 

what  constitutes  a  will. 

wills  written  or  unwritten ;   most  wills  written 252 

real  and  personal  property  now  treated  alike 253 

statute  rules  on  this  subject 254-256 

holograph  wills,  how  far  recognized 255 

will  drawn  up  by  another 255» 

statute  rules  as  to  form,  signature,  and  attestation 256 

will  not  properly  executed  and  attested  is  inoperative 257 

requirement    of    writing;     materials. 258 

language;    legible  writing    259,  260 

no  date  necessary ;  nor  formal  words 261,  262 

vrtll  imperative,  though  softer  words  used 263 

general  form  of  wills 264-266 

form  where  statute  requires  attestation 267-26!) 

instrument  composed  of  deed  or  contract  and  will 270 

will  distinguished  from  gift  causa  mortis 271 

test  between  will  and  other  instrument 272,  273 

posthumous  and  ambulatory  character 274 

operates,  notwithstanding  mistake  in  law 275 

writings    otherwise    intended 276 

plain  tenor  of  instrument;  efi'ect  of  doubt 277 

made  in  jest;   animus  testandi 250,  278,  279 

several  papers  making  a  will;   instruments  incorporated 280-282 

reference  of  will  to  other  writings 283 

will  on  several   sheets 284 

wills    conditional   or   contingent 283-290,  292 

wills   in   the   alternative 291 

will  to  operate  at  anotlier's  discretion 293 

papers  not  probated  as  wills;   appointing  guardian;   appointing  to  a 

situation ;    excluding   from    inheritance,   etc 294-296 

will  simply  nominating  executor;  wills  without  executor 297 

wills  disposing,  as  in  intestacy 298 

will  with  blank  spaces 298a 

Avills   under   a   power 299 

proponent  to  prove  execution 364 

valid   and   invalid   provisions   .separated 364 

nuncupative  or  oral  wills 359-379 

signature  by  testator  and  witnesses 300  et  seq. 

See  Execution, 

nuncupative  oi   oral  wills 359-379 

See  Nuncupative  Will. 


862  INDEX. 

WILL — continued.  Sec. 

how    revoked     380-409 

lost  or  missing    402 

See  Revocation. 

how    altered    428-440 

See  Altebation. 

republication    of 441-450 

See  Republication. 

upon  valuable  consideration,  irrevocable,  etc 451-460 

See  Consideration. 

construction  or  interpretation 461  et  seq. 

See  Construction. 

miscellaneous    provisions     591  et  seq. 

against  disputing  will ;  bond,  etc 605 

See  Certainty;  Condition. 

trustees,   their   rights   and   duties 608,  611 

WITCHCRAFT.     See  Insane  Persons 16S 

WITNESS.    See  Evidence. 

subscribing,  as  to  the  testator's   sanity 177-181,  198 

opinions    of    other    witnesses 197-209 

subscription   by    318-356 

See  Execution. 

competency  of  subscribing;   ''  credible,"  etc 23,  350-358 

gift  to,  annulled  by  statute 23,  357 

in    nuncupative    will 375 

of  act  of  revocation 388 

WORDS, 

technical,  etc.,   in  a  will 470-472 

See  Construction. 

describing  real  estate  construed 494-504,  510-512 

personal    estated    construed 504-512 

object    of    gift 533-548 

denoting    estate   or    interest 549-580 

meaning   interpreted  by   will 571 

See  Evidence. 

precatory,  effect    263,   595-597 

WRITING.    See  Wills 252  et  seq. 

[Total  Number  Pages   in  Vol.   1.  945.] 

END   OF   VOLUME  I. 


lAW  LIBRARY 
UHIVER8ITY  OF  CALIFORNU 


UC  SOUTHERN  REGIONAL  LIBRARY  f  ACILITY 


AA    000  906  458    5 


